-.. . 

s 37t 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 
to the St&e law, makea additional requirements an4 

repActlon8. In other WQX-&J, the State law aay8 that 

en Individual zag follow the oaaupation of barbering 

in Toxae upon amplianae with certain epeoifled m&Mtions aa to lioense, payment of oertatn feb(l, display 

of certifioate of liaenee, phyricul fitness aud eta.; 

nhnrcas, the %m Angelo ordinance 6age tbat YOU eanxbot 

follow this oaaupati.on In San An@10 although mu have 

complied with all requirementa of the State law, rithout 

secur1n.g an eddltionnl license fmn; the oity end payl~g 

additional fees therefor. 

As hearing on suoh a situation, we quote fraa 

the following ce~ee a~ indicated. TX Parts Prewer, 168 

EX 1068, a& pap3 1069: 

189, 

Yhere Is no inhibition in the ocnstltutl@n or laws of this state rhlah till pmrent the alty frax deali% with a matter with 

which the state laws do not deal where th'b'j-- 

xepo\vs ccnfe&drcnhe alty....* 

P underscoring ours I. 

The Cltp of 3ouatrn vs. Richter, et al, 187 53'8 

"Thhe term of the ordinance of the olty 

have been heretorare set out. Tha effeat of 

it.8 provisions is to prohibit, under penalty 

or rine, any plwber, who boa reoslvsd this 

liaense from the board of emminers under the 

provisions 0r the statutes, from exeruising 

t!-e privileges ~lven him by the statutes, unleas he twther i-$ves the bond provided by 

the ordlnanae and reaelves a further llasnao 

from the City of Ruston, issued by the oity 

en~hear.. . . We think It is too olear for 

argument that the ordinance In quOSti0a is Inoc-sintent with the ntntute rarerred to." 

!.?essaohusettn Bonding k Innuranae Company, et 

nl VE. ‘;’ aKay, 10 SK 2nd 770, et pay? 7711 

"In u surrlmental brief, arrallents urm 
aa ilrndmental error thot the ordfnanoe in 

yestlon, requlrlng plumberm to exeoute a 

$3,000 bond in order to procure a lloense 

to carry on their business in the oitf of 

Dallaa, Is unoonstitutlonal and void, and 

that thereiore said bond ereouted puBJuan% 

thsrrto la of no foroe and effect. Uo think 

their crontentinn in this rsspeot Is ala0 

Rood. In Articles 1076 to 1061, R. 8. 1925, 

the IeSlsloture has requl.red that- plumbers 

In oitJoe and towns of mre than 5,000 lnhabltante be liconeed before they ean operate, 

and has undertaken to mgulsto the manner 

in which such lioanse ahall be issued. !Fha 

statute ltsol? does not provide for any bond 

to be ereouted as a prerequisfte to the eonCcurt or Civil A>psals, in IIouston v. Rlohter, 

147 SW 169. This holding was aCain erpreaaly 

recognized in Xydlas Amsemont Co. v. City 

of Houston (Tex. Civ. rp.1 185 SW 416. See, 

alao, Pariah v. YrfChht 4 Tex. Civ. App.) Z93 

SW 659. And this general law of the state 

applies tc the city of L\Rllas, irrespeotive 

of the provisions of its speoial charter. 

3~~1s ve. Eolland (Tex. Civ. Apy.1 168 SK 

11; I'arrish VS. %+ht, supra. Said ordinanoa 

lr,>osinC additlcnal turdcns to those requ:red 

by the otute ~RW upon plmhers within that 

city was lnconslatont with and in confliot 

with the state law, end was thereicre void. 

It follows then thet oaid bond Given pursunt 

to suoh ordinance ~58 likcwloe void." 

xydias A!!use~:rnt CWyany VG. City or "owtotl, lR5 

,,' 415, at j-ace 420: 

"The true rule is, xs?;cre the state law 
Eion. Ralph Logan, Page A 

speaks, the olty ordinance muat be ellent: 

whers the stats law Is silent, the oity mwt 

8peak.” 

See ala0 the oaaen of !.kutel vu. State, 117 

X 85.S and Robinson v8. City ai Qalveaton, 111 8W 1070. 

mdlnanee, 

Wo eonolude, therefore, that the 6an welo 

In Its requirement ot an eddltional llamao 

‘rcna the CItp of San Angelo and of tha payment of addiAonal fee8 to the City of San melo, Invades a field 

lf lcgialation already usurped by the Legislature of 

'exae. 

It 18 Si@lifiOOilt, and oonclu8Ive on Its Inalidity, In these portioulars, that the mqulrementa of 

he ordinanoe do not enlarge upon and add to the requireenta of the state statute In apeclflo matter8 pertalnl~ 

o the protection of the pub110 health. In 8eotIons (a) 

nd (b), the health requirement alreedy enaoted Into 

tate law, and subject tc l nforcsnent by the paliee dsortnent of the City of San Arieslo, are made a part of 

ho ordinance es~touohlag such Eattsrs. The ordlnanoe 

lzply retgilns a barber to have an addItIonal lleenee 

ram the City of San W,elo, and to pay an aCdltlona1 

ee, to-wit, $1.50 for three months; %!J.OO for six months; 

5.00 for twelve months. 

'Under the deCIBIOnB oi tha oourta of Tam, eet 

It above, It is cur opinion that thcns provleloae a? the 

rdlnance are olearly invalid. 

Fe now ccncider Secticn 5 of the ordinanoe which 

,&d8 83 r0ii0nrs: 

"It shall be unlawful and an offense for 

the cwner, manager, proprietor or person in 

ohnrge or nny barber shop to Temit or ailow 

any suoh shop tc razaIn open for husInsss or 

to permit or allow ths prnctioe of barbering 

in said shop on Sunday or at any othor tims, 

except between the hours c:f 0~00 o'clook A. ?f. 

and 9:00 o~olock I'. !.!. cn taturdcys and between the hours of E:OO olclock A. 1:. and 6:OO 

o'olook 2. Y. cn ot!:er dey3 In thn week." 
Hon. Ralph Logan, Paage 5 

In this uonneotlon, may no point oat rtrrt that 

the ordinance treats or the houn within which 8 barber 

ehop may remain open, and dosn not treat as to the hours 4 

barber pay work in suoh shop. Henoe, the mlidlty or 

regulation, suggested by gou.. in ;lour brie, with rersrenoe to the hours women and Ohlldren may work, would not 

cmem to be analagous. The courtr in the oarsa later to 

be noted &early make this distlnotion. 

There 18 no 8tate statute regulatlne the hours 

la whioh 8 barber ehop may remain open. Nalther have we 

been able to find Ln our reoe8roh a Texas oaae pearing on 

this question as pertaining to barber *hop. 

IVlth mrerence to euch an ordinanoe toaohing 

pool halls, the court in the oam of Ex Ferte Brewer, 

eupra, eaya: 

*There is no inhibition in the oolutitatlon 

or lavie or this state which will prerent the 

alty rrom dealing with the matter with whiah 

the state laws do not deal whom the pollee 

power Is conferred upon the oity, and the stat.8 

in its 1~15, having fixed no hours of olorlng 

ror pool halls, it being a subJoot or regulation, such houra may be regulated by the city 

within reaeonable lir.lta.* 

The court, in this quotation, touohm upon the 

two questions involved in any legislation or an oocupatlon 

aa to the houra it shall remain o 

5" 

II: (1). It suoh ocoupation 18 a subjaot or regulation; 2) If the regulation 

la reaeonable. The auawer to these questions involve a 

large rleld or the law. 

KO qhote from Folume 30 Or Terar TuriSprUdenOe 

at pagea 120, 121, 122 and 123: 

Wenerally apeaking, mnicigal oorpomtiona have the right, under the police power, 

to safuguard the health, corrirortand general 

welfare or their citizens by suoh reasonnble 

rogulatione ae are necessary for that ptipoe8. 

The police power is not an arbitrary one; it 

has lte llmltatlono. Thus it ie aubjeot to 

the limitations imposed by the constitution 

upon every gower of government, and will not 

be periiittad to invade or lmpalr the rundaffiental liberties or the citizen. Also, it 16 

founded In public necessity and only public 
)n. Ralph Logan, Fake 6 

necessity can justiry its sreroise. It Is 

oofmensurate with, but does not exoeed, the duty 

to provide r0r the real needs 0r the people in 

their health, sarety, oomfort and oonvenlonoo 

aa oomlatently as may be with privets proparty righta. The interest of the pub110 gsnerally, aa dIstInguIshed rmm those or a particular olaes, mat require the Interfere&me. 

*A11 property la held aubjeat to the 

valid exera:ss of the polled power; nor are 

regulations uhconatItational fierely because 

they operate as a restraint upon private rights 

0r persons or property or ~111 result in lose 

to individuals. The Infllotfoa of auoh 1068 

is not a deprivation of property without dua 

procere or law; the exertion 0r the pollee 

power upon subject8 lying within its eoope, 

In a proper and lawful rminer, is due procrm 

0r law . . . . But the pollee power is eubordinnte to the right to acqufre and own property, and to deal with it and use it 81) the 

owner ohooaea, so long as the use harm nobody. It may be invoked to abridge the right 

of the oltlzens to use his private property 

when euch uso will endanger public health, 

at3r8ty’, coarort or welfare, - and only when 

this eltuatlon arises. . . . 

‘The police power authorizes only such 

aeasurea as are reasonable; to be valid aa an 

ererolse of this power, an ordlnanoe must be 

reasonable in its operation upon the persona 

whoa It effects and met not be unduly opprer8lW - that la, it must appear that the meana 

adopted are reasonably neoeesary and epproprlata ror the aocompllsfment of a legitimate 

objeat ralllng within the doslaln of the polfao 

power .fl 

These rany conslderattona, aa pertaining ,to 

arber shops, have never been rezolved by a Texas oourt, 

ooking to other jurisdictions we find the greet weight 

f authority holding legislation regulating open houre 

or barber shops to be invalid. ‘::e shall brierly review 

hese. 
Hen. Ralph Logsn, Faw 7 

The Su~rara Court of I?lnneeota, ln 1938, in 

the cesa of State vs. Johunnos, 259 XT 557, held swh 

an ordinance unconstitutional and oaf4 and aa vial& 

tlve of the due Croccaa clauoos of the State and 2bderal 

constltutlons, the ccurt saying% 

wElght tlreo have such otilnanoes boon 

berore the courts of last roscrt in thts 

oountry and aeven tlmos have they been held 

lnv8lltl as unjustifiable attempts to exeraism 

the polioo power.' 

The Guprmc Court of~!lohlgan, in l9S7, la.the 

ease of Eanea YS. the City of Detroit, 279 Yloh. 551, 272 

5W 896, in holding suoh an ordfnanoe imall says: 

"By the urnat weight of authorltlos, the 

ordinance at bar, so far as It fixes open 

houre for barber shops, is not aithln the 

police power md, in that particular, la raid." 

The Euprene Ccurt at ?:ashln@on; in lo?&, in 

the ease of Patton vs. Clty of Ellllnghsm, 38 Pea. 2nd 

364, holde suoh an ordlnaaoe unreasonable, arbitrary and 

void, the ocurt rerarklng that such an ordlnanoe doea 

not regulnte the business of barberlna, but dlotaterr its 

operations. 

The 2uIqvre Ccurt of Rhode Island, in 1858 in 

the oese of Anltrano vs.. Earbero, 1 Atl. 2nd LOO, hoida 

such leglsletlon &vzonstitutionol saying; 

wx':e hav0, therefore, determined to r0uow 

the decisions of those ocurto, representing 

the great aelgl:t of authcrlty, which has dsolded that legislation of the type before us 1s in 

violation of the approI:rlate Frovlslcns of the 

Fedora1 and State Constitutions." 

The Cu>:re::o Court of Vyomlng, in 1929; in the 

ease of State vs. City of X.sranle, 

leglslatlon not to ?~e 

275 Pao. 106, held euah 

a reasonable exerolse or the power 

to llcsnse, regulate and control barber shops and thererore invalid. 
Uon. Ralph Lomn, Page 8 

The Supreme Court of I'isslsalppi Divieion A, 

in 1931, in the c~ee of Kid&t vu. Johns, 137 80. 509, held 

suah legislation to be en unreasonable ereroise of the 

FOliOa power. 

The Supreme Court cf Louisiana, in 1950, in the 

~830 or.clty 0r Alexandria vs. Eall, 131 So. 7W, 171 

La. 595, held auoh an aot unoonstltutlolul. 

Xe have eldlar c?eclslons by the Supreme Co& 

of Colorado lh the aaae of City an4 County of Denver vs. 

Sohnid, 52 Fao. 2ne SE& in 1935; by the Suprosm Court 

of Caltiornle, in 1935, In the case of tinloy TV. Playerr, 

40 Fee. 817; by the Suy,rer?e Court of Georgia, in 1927, 

in the oaae of Chairea et al VS. the City oi Atlanta, 164 

Ca. 755, 139 FX 559; by the Supreme Court of Torntssaee, fn 

1959, in the case or State v8. Greaeon at al 124 SW 2nd 

253; end by the Supreme Court of Oklahoma, 1638, in the ease 

Oklahoma Clty.vs. Johnson, 02 Pee 2nd 1057. 

Finally, we note the oylnlon of the Supreme 

Judlolal Court of l'ascachueetto, in re Opinion8 of the 

JustIces, 14 XT 2nd 933: 

The questions relate to a pending bill 

which regulates the hours or opening and oloalrq of barber shops by provlBl.ng that they 

ahell not be open earlier then 0~00 o'olock 

in the ~fore-noon, nor renlaln open later than 

6100 o'olook in the aiternoon,durlng part of 

the yesr and 7~00 o'clock in the afternoon 

during onoth?aP part 0r the ymr, exoept that 

on Eaturdayn end the evcnlng beiore eaoh 

lege.1 holldyy they my remin open until 9:00 

. . . . The preolse point involved in theao 

questlens have nrfeen in other jurlsdlotlone. 

The groat weiE;ht of nuthority, in both soundness 0r remming an4 nmber or eoclslons, 

holds thnt l~~lalatlcn cf this nature violates 

the provislrm of state an4 iederal constltutiom.* (Citfne oesc:s frm t?.e vp.rIoue Jurlsdfotlans. ) 

Jurisdictiona holdirq the opposite vlaw, lneotmr 

as we havr been able to aroertaln me represents4 in the 
IfOIl. r?alph Io.pm, Fsge 9 

follouln$ c5ses: 

Seldman vs. Ci.nclnnatl, 20 Fad, Sup. 531; 

Faloo vs. Atlnntio City, 99 I?. J. 1. 19, 121 A. 610; 

Zilson vs. Zenssvllle, 150 Ohio Stats 2S6 199 IZE 18'1. 

The letter tpro cases hold that ouch legisktion la not 

unreasonable, hae n real and substantial relation to 

public health, morelo and safety and is a valid examcise of thd po1loe povrer, end Is oonstltutlon~l. 

The case of S4ldxen vs. Clnolnnatl, 20 Fed. 

Sup. 531, oitcd by you in your briai, ~48 a deolslon oi 

tha Federal District Court of Ohlo where the Gupxmme 

Court of Ohio, in the oasu of Wilson vs. City of !&menville supra, had held suoh legislation to be valid end 

oonst i tutional. Further, the oourt a8 stated at page 

542 of the opinion Indulged erary presmytloa in favor 

of the oonstltutionallty of the legislation and further, 

that It had not beon "tahown beyond a rational doubt" that 

such legislation violated any of the Frovislons oi the 

constitution 0r the United States. 

lie are unable to prediot how thu oourtfd of 

Texae will aonstrue a provision such ae that a? the ordinance at hand. Preoedents established by our oourte 

in passing upon similar le2lslatlon pertaining to other 

businesses or ocoupetlons are of little help because 

of the facts and circumstasccs peouliar to eaoh business or 

occupation. As said by the court in the case of the State 

vs. Johannes, supra: 

"If vi4 wei- to atteqt tc formulate a 

ccmprehensive definition of uhat my or may 

not be a proper exercise of the police powur, 

w4 muld be oonfronted with a task oi almcst 

inourmcuntable diffioulty. It has been eald 

that the pomr Is inaapoble or derlnition." 

It is believed, however, that the zajorlty view 

Is hasad upon scuscflr reasoni~nC 4s Illustrated in the 

following sxerpts frm the opinion of the Yassachusette 

:luprcne Ju~iolal Court: 

The occupation @,I being. a barber is an 

anoient and lawful business. Farber shcpe 

ar4 not ohnoxious, but are oomcr;ly regarded 

es inc?ln~onsable under Fresent conditions... 

Their rclatlcn to the *uhlic is such as to 
Hon. Ralph lo&an, Page 10 

rendar them amenable to legislative ragulatlon to thn end that those who frequent thean 

for the service there rendered may be proteoted from oormunioable dieeases, unhsalthful 

praotloes, and unsanitary aondltlona so far 

as prootloable.... The proposed bili does 

not in term shorten the hours of labor ci 

barbers. It does not purport to do that. It 

merely limits the houre during which barber 

shops may be kept open.... We are unable fo 

psr44lvs how the llmltationa of the proposed 

bill are founded upon any reasonable relation 

between the sots forbidden and the pmrotion 

of the public health or the public plorala. 

Parber shops may be aubjeotad to mfplation 

for proteotlon of the pub110 health and morals. 

The proposed bill oontaina no rules drdgnated 

to proreote olennliness, or to Inaura sanitation of barber shops. Provieions to aooompllah 

such ends is found In the power to pmrulgate 

reasonable reg0utions by the Icoard at lie&atrution of barbers, in the atetutea already rererred to and In the rl@t of lnapsotlon of barber shops.,.. Shortening the houra during whiah 

barber shoPa may be kept open would not faollltats 

the inspeotion of barber shopa. Thers 18 ample opportunity for inspection of barber nhope without 

olosing them. Ths suSgestlon that the prop@sed 

statute would 'further Proteot the publio againat, 

communicable diseases by conserving the energy 

of Jcrsons working therein end n;lvlnK them a 

reasonable mount of tim to attend to proper 

sanitetim thsrcsin,* seems almcst ianolful. 

'Th441ergy such to be conserved is not obvious, 

nor is the proteatlon of the public from comunlcable diseases.... There ore'msny barber shopa 

in the Comzonxeelth cprrated by the proprietor 

without hels. It might well be a great hardship 

for suah harbor not to confcrm to the need8 cf 

his oustor.era as to the hours of koepln(: hi8 shop 

open. It mi.Sht Interfera to a great extent wfth 

his business end his Income to comply with the 

hours prescribed by the proposed bill.... The 
Eon. Ralph l.ogsn, FM8 3.3 

propoead bill rlole~tsa _ fundamental, oonstitu- _ timal guarantees 88 deprlvln& parsons ot 

liberty end ppropetiy without dUB p~WOes8 of 

law end as denying peraone the proteat~on of 

liberty end property eooording t0 &ending 

laws. It impose8 limitations that are unto+ 

rtltutlollal." 

You ara thereiore respeotfully advised that It 

1; 

s the opinion of this department that Emotion S of the 

rdlnnnae of the City of San Angelo, regulet%ng the 

&ours wltb!n whiah barber shops ray xemln open, 1s un00nstitutlonal. 

X0 trust this amwsrs your lnqulry satfataotorlly, and ra?aln 

Vary truly your8