                     THEA-~~oR~TEY             GENERAL
                                OFTEXAS
                               AUSTIN~   11.TEXAR
    GERALD C. MANN



                                            April 17, 1939
      Hon. W. Lee O'Daniel
      Governor of Texas
      Austin, Texas
      Dear Sir:                           Opinion No. O-639
                                          Re: Constitutionality of House
                                              Bill No. 194
      By your letter of April 13, 1939, you ask the opinion of this
      Department as to the constitutionality of House Bill No. 194,
      pnpularly known as the Barbers Bill, posing the following questions
      for our determination:
           "1. It has been suggested to me that the Legislature of the
           State of Texas has been given no power by the Constitution
           under which it may pass a law with the provisions above re-
           ferred to and which are specifically set out in the attached
.
           Bill. Will you please advise me whether or not the Legisla-
           ture has power to pass such an Act.
            "2. Is the Act, or any part of it , ,in conflict with-Section
            10, Article 1, Constitution of the United States, forbidding
            the impairment of contracts?
            "3. Is the Bill, or any part of it, in conflict with the exis-
            ting laws referred to in Section 17 of the Act.?"

      Our investigation has first been directed to the broad question
      OS the constitutionality of the bill with the provisions contained
      therein, as posed in your first question.
      Section 2 of the Bill provides as follows:
      ~'Vhenever a scale of minimum prices for barber services shall have
      been agreed upon, signed, and submitted to the State Board of
       Barber Examiners by organized and representative groups of bar-
      bers of at least eighty-five (85) per cent of the licensed bar-
      bers in any county of this State, the State Board of Barber Exam-
       iners shall have power to approve or disapprove such agreements and
       to declare and establish within such county, ~by official order,
       the minimum prices for any and all work or services usually per-
       formed in barber shops."
Hon. W. Lee O'Daniel, April 1.7,1939, Page 2   O-639


Section 3 of the Bill provides that the orders of the Board ap-
proving the schedule of prices in a particular county shall re-
main in force until rescinded or modified by the Board. Section
3a provides that the minimum price set by the Board shall not
exceed forty (404) cents per haircut. Section 4 gives the Board
the authority to adopt and enforce rules necessary to carry out
the provisions of the Act, and provides for the posting of such
orders, and for notice thereof to be mailed to baroer shops affected
by the rule or order. Section 5 provides exemptions within cer-
tain limits. Section 6 provides that the practice and procedure
of the Board with respect to an investigation authorized by the
Act shall be in accord with the regulations promulgated by the
Board, which regulations must provide for reasonable notice to all
persons affected by orders to be made by the Board, and for public
hearing. This section also gives the Board certain powers with
respect to such hearFngs, which are not necessary to be considered
in connection with this opinion. Section ~7 gives the Board the
power to bring injunction suits to restrain violations of the law
or an order of the Board.
Section 8 vests in the Board general powers necessary for adminis-
tering and enforcing the Act. Section 9 provides the persons to
whom the act shallapply, with certain exemptions, within prescribed
limits. Section 10 prescribes the punishment for violation of
provisions of the Act or rules or orders of the Board.
Sections 11, 12, 13, 14, 15, 16, 17, and 18 enact provisions not
necessary to be considered in connection with this opinion.
A careful examination of the Aat as a whole reveals that Section
2 thereof confers upon the State Board of Barber Examiners an
unbridled and arbitrary discretion to approve or disapprove agree-
ments submitted by the barbers of any particular county of the
State. No standards are laid down by the Act. There is no def-
inition og the circumstances and conditions under which the appro-
val of the Board to an agreement is to be allowed or withheld.
No finding of any character to the facts upon which the approval
or disapproval of the Board is based is anywhere in the Act re-
quired as acondition precedent to its action. So far as the
entire Act is concerned, it gives to the Board an unl.kmitedautho-
rity to approve or disapprove the agreements as it may see fit.
The only limitation upon the authority of the Board is, that if
it approves an agreement submitted by the 'barbersof a particular
county the minimum price for haircuts may not be set at exceeding
forty 140$) cents. And disobedience to the order of the.Board
is made a crime punishable by fine and/or imprisonment.
In other words, the effect of the entire Act is this: The bar-
bers of a particular county may submit to the Board the character
of agreement contemplated by Section 2 of the Act, and the Board
t.   -




     Hon. MI.Lee O'lJaniel,April 17, 1935, Page 3   O-635


     may approve such aggreement and declare and establish within such
     county by official order, the minimum prices for any and all work
     or services usually performed in barber shops. The baroers of
     another and different county may then submit to the Board an iden-
     tical agreement, and the circumstances surrounding the making
     of such agreement in the second county may be identical to those
     existing in the first, and all economic conditions and other con-
     ditions affecting such agreement, and the necessity or advisability
     nf fixing minimum prices may exist in like and identical degrees
     in the second county as in the first+ yet, nevertheless, the
     Board, by authority of the Act.,may withhold its approval of the
     agreement submitted by the oarbers of the second county.
     Under our system of government, the exclusive authority to enact
     laws is vested by the Constitution in the Legislature. The Legis-
     lature is not permitted to delegate that power. Smith v. Swisher,
     17 Texas 441. The effect of Section 2 of the Act under considera-
     tion is to vest legislative authority in the State Board of Bar-
     ber Examiners, and the Act is, therefore, unconstitutional.
     Paname Refining Co. vs. Ryan, 293 U.S. 446; Schecter vs. United
     States, 255 U. S. 455. The Act, however, does more than vest
     the Board with legislative authority. Its necessary effect is
     to vest the Board with powers which the Legislature itself could
     not constitutionally exercise. For example, adverting to the il-
     lustration given above, if the barbers of two separate counties
     where conditions were in all respects similar should at the same
     time submit identical price-fixing agreements to the Board, the
     Board could, by virtue of the 'broaddiscretion conferred upon it
     by the,Act, approve one agreement and arbitrarily reject the other.
     This is a power which the Legislature itself cannot constitution-
     ally exercise, for the Legislature cannot constitutionally create
     an arbitrary classification thereby according one man or set of
     men exclusive privileges not extended to other men similarly sit-
     uated.
     Section 3 of the Bill of Rights of the Texas Constitution provides:
          "All free men, when they form a social compact, have equal
          rights, and no man, or set of men, is entitled to exclusive
          separate public emoluments, or privileges, 'butin considera-
          tion of public services."
     Even legislative classifications must rest upon logicaldistinc-
     tions, and all within the class, under uoth the State and federal
     constitutions, must be accorded the equal protection of the laws,
     In reply to your first question, therefore, this department is con-
     strained to hold that House Bill No. 194, for the reasons given
     above, is unconstitutional.
    Hon. UV.Lee O'Daniel, April 17, 1939,      Page 4


    In view of this holding, it 'becomesunnecessary to answer your
    second and third questions, or to render an opinion upon other
    questions of constitutionality suggested by a reading of the
    Act.

                                          Respectfully yours
                                         ATTORNEY GEWXAL OF TEAAS

                                         3y    R..r.Fairchild
                                                    Assistant
    H.ilF:PBP:ml
    APPROVUI:
       GERALD C. MANN
    ATTORNKY GZNERAL OF TKXAS




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