### 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: Constitutionalityof House Bill No. 194 By your letter of April 13, 1939,you ask the opinionof this Department as to the constitutionalityof 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 Legislatureof the

State of Texas has been given no power by the Constitution under which it may pass a law with the provisionsabove referred to and which arespecifically set out inthe attached Bill. Will you please adviseme whether or not the Legislature has power to pass such an Act. "2. Is the Act, or any part of it, ,inconflictwith-Section 10, Article 1, Constitution of the United States,forbidding the impairmentof contracts? "3. Is the Bill, or anypart of it, in conflictwith the existing laws referred to in Section 17 of the Act.?"
Our investigationhas first been directed to the broad question OS the constitutionalityof the bill with the provisions contained therein, as posed in your first question. Section 2 of the Bill provides as follows: ~'Vhenevera scale ofminimum prices for barber services shallhave been agreed upon, signed,and submitted to the State Board of Barber Examiners by organized and representativegroups of barbers of at least eighty-five (85)per cent of the licensedbarbers 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 establishwithin such county,~byofficial 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that the orders of the Board approving the schedule of prices in a particular county shall remain in force until rescinded or modified by the Board.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 shallnot exceed forty (404)cents per haircut. Section 4 gives the Board the authorityto adopt and enforce rules necessary to carry out theprovisions of the Act, andprovides 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 exemptionswithin certain limits. Section 6 provides that the practice and procedure of the Board with respect to an investigationauthorizedby the Act shallbe in accord with the regulationspromulgatedby the Board, which regulationsmustprovide for reasonablenotice to all persons affected by orders to be made by the Board, and forpublic hearing. This section also gives the Board certainpowerswith respect to such hearFngs,which are not necessary to be considered in connectionwith this opinion. Section~7gives the Board the power to bring injunctionsuits to restrainviolations of the law or an order of the Board. O-639

Section 8 vests in the Board generalpowers necessary foradministering and enforcing the Act. Section 9 provides the persons to whom the act shallapply, with certainexemptions, withinprescribed 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 connectionwith this opinion. A carefulexamination of the Aat asa whole reveals that Section 2 thereof confers upon the State Board of Barber Examiners an unbridled and arbitrary discretion to approve or disapprove agreements submittedby the barbers of any particular county of the State. No standards are laid down by the Act. There is nodefinition og the circumstancesand conditionsunder which the approval of the Board to an agreement is to be allowed or withheld. No finding of any characterto the facts upon which the approval or disapprovalof the Board is based is anywhere in the Act required as acondition precedent to its action. So far as the entire Act isconcerned, it gives to the Board an unl.kmitedauthority to approve or disapprove the agreementsas itmay see fit. The only limitationupon the authority of the Board is, that if it approves an agreement submitted by the 'barbersof a particular county the minimumprice for haircutsmay not be set at exceeding forty 140$) cents. And disobedience to theorder of the.Board is made a crime punishableby fine and/or imprisonment.
In other words, the effect of the entire Act is this: The barbers of a particular countymay submit to the Board the character of agreement contemplatedby Section 2 of the Act, and the Boardt. -

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

may approve such aggreement and declare and establishwithin such county by official order, the minimum prices for any and all work or servicesusually performed in barber shops. The baroers of another and different countymay then submit to the Board an identical agreement, and the circumstances surroundingthe making of such agreement in the second countymay be identical to those existing in the first, and all economic conditionsand other conditions affecting suchagreement, and the necessity or advisability nf fixingminimum pricesmay exist in like and identicaldegrees in the second county as in the first+yet, nevertheless, the Board, by authority of the Act., may withhold its approval of the agreement submittedby the oarbersof 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 legislativeauthority in the State Board of Barber Examiners, and the Act is, therefore,unconstitutional. Paname Refining Co. vs. Ryan, 293 U.S. 446; Schectervs. United States, 255U. S. 455. The Act, however, does more than vest the Board with legislativeauthority. Its necessary effect is to vest the Boardwith powers which the Legislature itself could not constitutionallyexercise. For example,adverting to the illustrationgiven above, if the barbers of two separate counties where conditionswere in all respects similar should at the same time submit identicalprice-fixingagreements to the Board, the Board could, by virtue of the 'broad discretion conferredupon 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 constitutionallycreate an arbitrary classificationthereby according one man or set of men exclusive privilegesnot extended to other men similarly situated. Section 3 of the Bill of Rights of the Texas Constitutionprovides: "All free men, when they form a social compact,have equal rights, and no man, or set of men, is entitled to exclusive separatepublic emoluments,or privileges, 'butin consideration of public services."
Even legislative classificationsmust 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 opinionupon other questions of constitutionalitysuggested by a reading of the Act. Respectfullyyours 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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