OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Honorable L. J. Sulak, Chairman 

Pub110 Health Committee 

The Senate 

Austin, Texas 

Dear Slrr 

the oonstltutlonalit 

authorize the State 

prloeo for any and 

the barber business 

f the Publlo Health 

is Department upon 

The bill would 

usually performed in 

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 have been agree& upon, 

ltted to the State Beard of Barorganlzecl 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 Andy all 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 buslneasea 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 Inoldant to such work, taking into oomlderatlon 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 oreatlng an unfair, demorallzlng an& uneoonomio eompetition 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 oondltlon, 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 unoonetltutlonal, 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 upon rights otherwise 

!r 

aranteed by the oonstltutlon. In the 

aeoond plaoe, House Ill No. 194 was, in our oolnlon, unoonatltutlonal 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 afflwatlve 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 aubmiaaIon 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 queatlon. 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 oonatltutIonl llty of anr bl P 1 proposed In the Leglalature la, of oourae, only 

advisory In ohareotar. It daea not have the for-or and l ffeot 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 l ubstentlal 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 
Honorable L. 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