Gobel, Will C.

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Licenses: Bobbers not Barbers

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Marquette Law ReviewVolume 9Issue 2 February 1925 Article 11Licenses: Bobbers not BarbersWill C. GobelFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationWill C. Gobel, Licenses: Bobbers not Barbers, 9 Marq. L. Rev. 117 (1925).Available at: http://scholarship.law.marquette.edu/mulr/vol9/iss2/11NOTES AND COMMENTwoman want of chastity are actionable per se.7 An assertion merely oflibidinous tendencies or general bad conduct is not sufficient.8 Anactionable imputation may be made by the use of cant or slang wordsor provincialisms which, according to their ordinary meaning, are notdefanatoryY The court in this case saw fit not to attach a transientmeaning to the word "sport" and inasmuch as no extenuating facts areshown and the case arises on demurrer it was properly decided.10V. W. D.Licenses: Bobbers not Barbers.-The discussion under this epi-grammatic caption is occasioned by the recent decision of the MinnesotaSupreme Court' State v. De Guile (Minn. 1924), 199 N. W. 569,declaring that a statute,2 making it unlawful for any personto follow the occupation of a barber unless he shall have firstobtained a certificate of registration is not applicable to women employedin so-called beauty parlors who dress and cut, or bob women's hair.This in spite of the fact that the statute says that "to shave or trim thebeard or cut the hair of any person for hire or reward . .. shall be con-strued as practicing the occupation of barber within the meaning of thisact."3 The court bases its decision upon the ground that although beautyparlors were in existence at the time of the enactment of the statute thelegislature manifestated no desire to include beauty parlors,4 and evenindicated that they did not wish to include them. Being in derogationof a common right and penalizing conduct devoid of moral turpitude,the statute must be strictly construed and not extended by implication toclasses not clearly within its terms.' The unlawful act must be spe-cifically and clearly described and provided for. "It is not enough thatthe case may be within the apparent reason and policy of the Legislationupon the subject, if the Legislature has omitted to include it within the'Peterson v. Rasmussen, 191 P. 30; Coquelet v. Union Hotel Co. (Md.) 115 A.813; Richardson v. Roberts, 23 Ga. 215; Hasley v. Brooks and Wife, 20 Ill. 115;Reynolds v. Tucker and Wife, 6 Ohio St. 516; Bereford v. Wible, 32 Penn. St.95. In Wisconsin the general rule being that words which impute to another acrime involving moral turpitude, and which subjects the party committing it to afine or imprisonment are actionable. Beneway v. Conyne, 3 Chand. 214; Ranger v.Goodrich, 17 Wis. 28; Gibsen v. Gibsen, 43 Wis. 23; Mayer v. Schleichter, 29Wis. 646; Hacker v. Heiney, III Wis. 313.'Martin v. Sutter, 212 P. 6o; K- v. H-, 2o Wis. 239; Robertson v. Edelstein,104 Wis. 44o, 8o N. W. 724; I Starkie on Slander, 422, 431.'imer v. Allbough, 78 Iowa 79, 42 N. W. 587, 16 Am. S. R. 422; Acker v.McCullough, 5o Ind. 447; Logan v. Logan, 77 Ind. 558; Clute v. Clute, ioi Wis.137; Newell, Slander and Libel (2nd ed.) 6o3." Lbcke v. Teckain, 179 Wis. 543.'State v. De Guile, igg N. W. 569.'Ch. 424, Laws of Minn. 1921.Id.'The opinion states: "It would have been easy to say so."I "Taxes by way of licenses for the pursuit of ordinary business or commonoccupation must be imposed in clear and unambiguous language." Wilson v. D. C.26 App. D. C. xio; State v. Small, 29 Minn. 2x6, 12 N. W. 703.MARQUETTE LAW REVIEWterms of its enactments.6 This opinion would seem to be authority forthe rule that though occupations may be similar or analogous, and thesame reasons exist for their regulation 7 they must be clearly includedin the legislation or they will not be brought within its provisions.Conceding therefore that there are the same apparent reasons forlicensing a hairdressing establishment whose clients are women as thereexists for licensing a similar establishment whose customers are men,and that the services performed are materially the same, it would almostseem that a statute requiring one to be licensed without a similar pro-vision governing the other would be unlawful discrimination.8The discrimination, if any exists, may appear to be on account of sex,but this is not true, for the general application of the statute seems tobe that women who shave the beards of men are required to obtainlicenses, while men who confine their tonsorial activities to the shearingof "woman's crowning glory" have not been required to secure a license.The discrimination is not, therefore, based upon the sex of the operator,but is a distinction in the class of occupation based upon the sex of the'State v. Finch, 37 Minn. 433, 34 N. W. 904. "A street car does not fallwithin designation 'road vehicle' in charter provision giving right to 'tax, license,and regulate road vehicles.'" Mil. Elect. Ry. Co. v. City of Milwaukee, 167 N. W.428, 67 Wis. 384.The right of the state to license barber shops is a valid exercise of the policepower of the state to safeguard health and has been consistently upheld by thecourts. It is based upon the ground that communicable diseases may be readilyspread by unclean methods in barber shops. People v. Logan. 284 Ill. 83, 119 N. E.913; Com. v. Ward, 136 Ky. 146, 123 S. W. 673; Moler v. Whisman, 243 Mo. 571,147 S. W. 985, 4o L. R. A. N. s. 629; Ex Parte Lucas, 16o Mo. 218, 61 S. W. 218;La Porta v. Hoboken Bd. of Health, 71 N. J. L. 88, 58 Atl. 115; State v. Armeno,29 R. I. 431, 72 Atl. 276. But is this danger decreased by the fact that the patronsof a beauty parlor are women? The contrary is believed by the WisconsinSupreme Court, who have taken judicial notice of the fact that, "It is thought bythe highest medical authorities that the main source of venereal infection is theprostitute," and is further evidenced by the fact that i n times and countries wheresuch immorality was and is tolerated the legislative bodies have required periodicalmedical examination of such women. Peo. ex rel. Boroni v. Fox, 202 N. Y. 616,96 N. E. 1126."Rev. Stat. 1899 Mo. ioo8g (Ann. St. 19o6, p. 460o) provides that all roomsor buildings occupied as biscuit, bread or cake bakeries shall be drained andplumbed in a manner to conduce to the proper and healthful sanitary conditionsthereof-Held, that as such section applied only to bakeries named and did notapply to those engaged in making pie and pastry, or crackers and confectioneries,as to which there was the same reason for keeping buildings and rooms occupiedby that class of bakeries in a sanitary condition, it was invalid as a discriminationbetween persons belonging to the same class forbidden by Const. Art. 4, Sec. 3(Ann. St. 79o6, p. 197)." State v. Mihiscek; 225 Mo. 561, 125 S. W. 507, Am. St.Rep. 597. An "act imposing a license tax on barbers, but exempting from the tax(i) students of state schools who are serving as barbers, (2) those serving asbarbers in eleemosynary institutions, (3) those following the occupation in townsof i,ooo inhabitants or less, is unconstitutional as discriminatory." Jackson v.State, 55 Tex. Cr. Rep. 557, 117 S. W. 818.NOTES AND COMMENTsubject upon whom the service is performed. If the discriminationwere on account of the sex of the operator it would probably be un-lawful9 unless peculiar circumstances or the inherent nature of the classor occupation should demand the exercise of the police power.10A Kansas statute, similarly vague, has given rise to the same contro-versy in that state. It provides that "It shall be unlawful for any personto follow the occupation of a barber in this state unless he shall havefirst obtained a certificate of registration as provided in this act."" Inan action by the owner- of a beauty parlor against the state to preventthe State Barber Board from requiring her to secure a license under theabove statute it was held, in the language of a syllabus written by the,court, that "The proprietor of a hairdressing and beauty parlor, the im-portant features of whose business include cutting hair, massaging, clip-ping hair with barber clippers, singeing the hair, giving tonics,shampooing, and manicuring, BUT NOT SHAVING THE FACE,"is not a 'barber' within the meaning of that word as used in a statutesubjecting the followers of that occupation to examination and regula-tion."'1 3 In the course of its opinion the court says: "If persons who dowork similar to that of barbers, BUT DO NOT UNDERTAKE TOSHAVE"4 their customers, are to be brought within the discipline of aregulatory board, it should be by virtue of new legislation rather thanby an extension of the scope of existing law by interpretation." Thisgrasping at the slightest grounds of distinction between similar classes'Not affording equal protection of the laws. U. S. Const., 14th amendment." Sec. 2339 Wis. Stats. 1913, granting marriage licenses only where the maleapplicant was free from acquired venereal disease and requiring him to undergoa physical examination within fifteen days before the license is granted washeld not to be discriminatory. Timlin, J., in a concurring opinion in the case ofPeters v. Widule, 157 Wis. 641, 147 N. W. 966, says: "A point is made thatrequiring the prospective husband to submit to the examination without makingthe prospective wife do so conflicts with the fourteenth amendment to the U. S.Constitution .... But the men desiring to marry form a very definite class quitegermane to the object sought to be accomplished by the statute." In the pre-vailing opinion, Winslow, C. J., says (at p. 670 in Wisconsin Reports and p. 974in the N. W.) : "Theoretically the argument is strong .... The medical evidencein the case; however, corroborates what we suppose to be common knowledge,namely, that the great majority of women who marry are pure, while a con-siderable percentage of men have had illicit sexual relations before marriage andconsequently the number of cases where newly married men transmit a venerealdisease to their wives is vastly greater than than the number of cases wherewomen transmit the disease to their newly married husbands .... The question is'whether there are characteristics which in a greater degree persist through the,one class than in the other and which justify the different treatment.' That thereare such characteristics in the class of unmarried men is as certainly true as it is-discreditable to the male sex." This distinction can hardly be applied to thequestion under discussion. Is the immoral woman less particular about her:personal appearance than the chaste woman?'Kan. Gen. Stat. 1915, par. 10326.' The italics are writer's."Keith v. State Barber Board, 112 Kan. 834, 212 Pac. 871.MARQUETTE LAW REVIEWof occupations is indicative of the tendency of the courts to confine theapplication of licensing and regulatory statutes in derogation of a com-mon right strictly to the specific instances enumerated in the statute.' 5The Legislature of Wisconsin is blessed with a foresight most un-usual in state legislatures, having avoided this question entirely. Notonly has it passed a statute requiring barbers to be licensed,'6 but it hasincluded a chapter regulating beauty parlors.' This statute containsthis definition: "Barbering is shaving, trimming the beard, cutting thehair, shampooing, scalp or face massage of a male over ten years of agefor payment."' 8 It is specific and leaves no need for interpretation.The chapter regulating beauty parlors provides that "no person shallfollow the occupation of beauty parlor manager, operator or apprenticewithout a license."' 19 It is significant that although the statute has takengreat pains to define the occupation of barbering most exactly, yet uponthe definition of a beauty parlor it is ominously silent. Apparently thecourts are not alone in their trepidity of encroaching upon the exclusivedomain of the "deadly sex," for the Wisconsin Legislature, thoughbolder, appears equally ignorant of the artificial aids to pulchritude em-ployed by the "female of the species."WILL C. GOBEL.Master and Servant: Employee of National Guard is entitled tocompensation under Employers' Liability Law.-Can a nationalguardsman recover a compensation award under the Workmen's Com-pensation Act for injuries suffered while serving in his capacity as aguardsman or in doing any work connected therewith? This questionhas been aswered in the affirmative by the recent case of NebraskaNational Guard v. Morgan, (Neb. 1924) i9 N. W. 557. One Morganwas employed as a carpenter to erect shed kitchens for each of the com-panies of the Nebraska National Guard which were to gather for anencampment near the city of Ashland in August, 1923. Plaintiff wasemployed on July 23 and worked for six consecutive days until he met' The italics are writer's."A corporation engaged in producing, buying and selling oil, and oil products,owning and using tank cars solely for transporting its own products, which owner-ship is necessitated by the failure of railroads to provide cars, is not engaged inthe business of owning tank cars within the Laws of Florida 1913, sec. 642I ...and by sec. 46 imposing such tax on 'any corporation owning, controlling oroperating tank cars.'" Texas Co. v. Amos, 81 So. 471, 77 Fla. 327; Matthews v.State, 214 S. W. 339, 85 Tex. Cr. App. 469. "Under Motor Vehicle Law, par. 289,defendant telephone repairer, while using automobile furnished him by employerto convey himself and necessary materials from place to place, held not a chauf-feur." People v. Dennis, i66 N. Y. Supp. 318."The mere giving of massage treatments professionally falls within the pro-fession of a trained nurse and one who gives such treatments is not required to belicensed." People v. Hettinger, i5o Ill. App. 448.' Chap. I58, Wis. Ann. Stats. 1923." Chap. i59, Wis. Ann. Stats. 1923." Sec. 158.Ol, Wis. Stats." Sec. 159.02, Wis. Stats.

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Licenses: Bobbers not Barbers

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