THEA-~~oR~TEY GENERAL 

OFTEXAS 

GERALD C. MANN 

AUSTIN~ 11. TEXAR 

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 referred to and which are specifically set out in the attached 

Bill. Will you please advise me whether or not the Legislature 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 existing 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 barbers of at least eighty-five (85) per cent of the licensed barbers in any county of this State, the State Board of Barber Examiners 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 performed in barber shops." 
Hon. W. Lee O'Daniel, April 1.7, 1939, Page 2 

Section 3 of the Bill provides that the orders of the Board approving the schedule of prices in a particular county shall remain in force until rescinded or modified by the Board.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 certain 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. 

O-639 

Section 8 vests in the Board general powers necessary for administering 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 agreements submitted by the barbers of any particular county of the 

State. No standards are laid down by the Act. There is no definition og the circumstances and conditions under which the approval 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 required as acondition precedent to its action. So far as the 

entire Act is concerned, it gives to the Board an unl.kmited authority 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 'barbers of 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 barbers 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 identical 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 conditions 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 Legislature is not permitted to delegate that power. Smith v. Swisher, 

17 Texas 441. The effect of Section 2 of the Act under consideration is to vest legislative authority in the State Board of Barber 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 illustration 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 'broad discretion conferred upon it 

by the, Act, approve one agreement and arbitrarily reject the other. 

This is a power which the Legislature itself cannot constitutionally 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 situated. 

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, 'but in consideration of public services." 

Even legislative classifications must rest upon logicaldistinctions, 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 constrained 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 'becomes unnecessary 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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