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Show PAGE FOUR MONDAY, JULY 1,1974 INTERMOUNTAIN COMMERCIAL RECORD In The Supreme Court Of The State Of Utah No. 13368 FILED June 26, 1974 W. McGinn, Director, Floy Department of Registration, State Department of Business Regulation, State of Utah, Defendant and Appellant. 1. CALUSTER, .reomDlished by the act. If some persons or were as to the subject transactions, excluded from the operation of the law, included within its those matter of the law in no differentiate class from of arbitrary and unoperation, the law is discriminatory in the sense being constitutional. 2 In Maryland State Board of Barber Examiners v. Kuhn, the court held that to the extent that the challenged statute prohibited costhey might metologists from rendering to male patrons the same services Protection the violated it Equal lawfully provide to female customers, was without any statute the established by the classification for Clause, reasonable basis and was, therefore, purely arbitrary. The court emphasized that the cosmetologists sought permission only to render the same services for men'shair that they already lawfully and competently provided for women's hair. The cosmetologists neither sought nor would they be permitted to hold themselves out as barbers. In performing the same services and techniques upon men's hair that they already use on women's hair, the cosmetologists would employ the same instruments and not those which only barbers are trained to use in providing "conventional male haircuts. The court assumed that the hygienic standards of the establishments where each profession worked would be maintained at a similar level. Allan E. Mecham, Clerk Chief Justice; Plaintiff is a licensed cosmetologist. Chapter 11, Title 58, U. C.A. 1953. She has fulfilled the special requirements of Section U. C. A. 1953, and her license includes the right to cut hair. An investigator, employed by the Department of Registration of the State Department of Business 58-11- -4, Regulation, filed a formal complaint, charging plaintiff with cutting the hair of a male patron in violation of Section 58-- 1 1 -- 12(2)(c), U. C. A. 1953. Upon a formal hearing before defendant, Chairman of the Department, plaintiff's license to practice cosmetology was revoked for a period of ninety days. Plaintiff filed a petition for review in the district court and for an order staying the revocation of her license. Subsequently, plaintiff filed , a motion for summary Judgment on the ground that the provision of the statute prohibiting her from trimming and cutting a male patron's hair was unconstitutional. The trial court vacated and declared null and void the order of the Department of Business Regulation revoking plaintiff's license to practice cosmetology, The trial court ruled that Section U. C. A. 1953, was unconstitutional insofar as it has been to interpreted prohibit a licensed cosmetologist from the cutting of hair of males. Defendant appeals and urges that the provision of the statute constituted a valid exercise of the police power by establishing reasonable rules. and regulations to protect the public health, safety and welfare. Furthermore, the statute established a reasonable classification, preserving the distinctions between the professions of barbering and cosmetology. arbitrarily and unreasonlawful occupation and, thereably limit the cosmetologists' right to pursue a fore, deny them due process of law? Does Section stated: cosmetologists. Section 58-4-- To . . . cut the hair, . . . shall constitute practicing the occupation of barbering; provided, that persons, duly licensed to practice as hairdressers and cosmeticians are exempted from the provisions of this chapter. Plaintiff urged successfully before the trial court that this statutory scheme, which permits barbers to cut the hair of both men and women but restricts cosmetologists to cutting the hair of girls and women, was unconstitutional. 1 A legislative classification is never arbitrary or unreasonable so long as the basis for differentiation bears a reasonable relation to the pur- Doral D. Goodsel, an Individual, and Union Pacific Railroad Company, a corporation, and Respondents, v. Department Of Business Regulation Of The State Of Utah and Hal S. Bennett, its Executive Director; Department Of Registration Of The State Of Utah and Floy H. McGinn, Its Director, Defendants and Appellants. if are admittedly adequate. . . .0 The court concluded that the statute could not withstand constitutional scrutiny and violated the Due Process Clauses of both the federal and state constitutions. Under the Due Process and Equal Protections Clauses of the United States Constitution and under Article I, Sections 7 and 24, and Article VI, Section 26 of the Constitution of Utah. 2. State v. Mason, 94 Utah 501, 78 P. 2d 920, 117 A. L. R. 330 (1938); State v. J.B. !cR.E. Walker. Inc., 100 Utah 523, 116 P. 2d 766 (1941); Justice v. Standard Gils onite Company. 12 Utah 2d 357. 366 P. 2d 974 (1961). 3. 270 Md. 496. 312 A. 2d 216 (1973). 4. Clayton v. Bennett. 5 Utah 2d 152, 298 P. 2d 531 (1956). 5. Note 3, supra. 6. At p. 225 of 312 A. 2d. In the instant action, the trial court properly ruled the statute was unconstitutional insofar as it attempted to curtail the permitted statutory practices of cosmetologists to only women and girls. The judgment of the trial court is affirmed. decide will be permitted to take the examinations given by the defendants. who trial court considered the statute which permits such,a situation violation of certain constitutional provisions. No. 13585 to exist to FILED law should be held 1n violation of the constitution only when do so In granting a constitutional right to an aggrieved 1s If It possible to redress the wrong by means other than a declarationparty. of the unconstitutionality of, a statute, the statute should not be stricken be 1n A necessary to June 25, 1974 down. Allan E. Mecham, Clerk In this case Mr. Goodsel can be granted relief without the necessity of holding the statute unconstitutional. The case of Merrill v. McGinn, et al, 1. The court also held that section U.C.A. 1953 (kepi accent Vol. 6A was violative of the constitution. 2. 16 C.J.S. Constitutional Law Sec. 94. decided by this court on February 20, 1974, 3 seems to be controlling. There, Merrill, an applicant for a license as a certified public accountant, was denied certification on the technicality that he had not had the required work as an apprentice. It appeared that he had the equivalent of the requirements set out by the defendants. He had passed the examinations given for certification as a certified public accountant, and we affirmed the trial court 1n holding that the action of defendants was arbitrary, capricious, and without foundation 1n fact or law. 58-18- ELLETT. Justice: This Is an appeal from a summary judgment wherein the trial court held certain portions of the Plumbers Registration and License Law to be unconstitutional and directed the defendants to Issue a journeyman plumber's certificate to the plaintiff Goodsel. There are no disputed Issues of fact In the case. The Union Pacific Railroad Company maintains depots 1n various places and from time to time requires the services of a plumber. It Is often difficult to obtain the services of a licensed plumber In the remote areas of the state, and for that reason It 1s necessary to employ plumbers who perform services where and as needed by the company. In this state Section follows: (a), U.C.A. 1953 (Replacement Volume 6A), provides as applicant for a certificate to engage In the trade of a as journeyman plumber, must produce satisfactory plumbing evidence that he has completed at least three and one-ha- lf years of training as an apprentice plumber under a duly licensed plumbing contractor, and Is of good moral character, and pass a satisfactory examination under the rules and regulations of the department of registration. Each 1953, In Maryland State Board of Barber Examiners v. Kuhn5 the court The Plaintiffs 12(2)(cj, U.C.A. 1. U.C.A. 1953, provides: 10, -- 1 . . . Manifestly, it cannot be seriously argued that the object sought to be attained is the protection of the male public from inadequate training and inferior hygienic standards, the statute bears a real and substantial relation to that objective, when it is conceded that the very same services are rendered to female customers, for whom they appliances." 19, 58-1- The right to engage in a profession or occupation is a property right, which is entitled to protection by the law and the courts. There are some professions and occupations, which require special skill, learning and experience, and the public ordinarily does not have sufficient knowledge to determine the qualifications of the practicioner. To protect the public health, safety, and welfare, the legislature under the police power may establish reasonable standards with which one must comply as a prerequisite to enHowever, under the police power, the means gage in certain occupations. selected must bear a real and substantial relation to the objective sought to be attained. U. C. A. 1953,' provides that a cosmetologist in his practice: "Cutting, clipping or trimming the hair of may perform women or girls only by the use of scissors, shears, clippers or other Section U.C.A. 1953, provides that barbers licensed under the laws of this state are exempted from the chapter concerning K 11 Section 58-11-- t rtM.oH Vonnle Ray Leetham, Plaintiff and Respondent, The Union Pacific Railroad Company has In Its employ one duly licensed journeyman plumber, and Mr. Goodsel has completed more than three and one-ha- lf years as an apprentice plumber working under his direction. In addition to the work performed as such apprentice, Nr. Goodsel has attended and successfully completed all classes In plumbing given by the Utah Technical College. He has also passed the examination given by the defendants for journeyman plumbers, and It Is not denied that he Is qualified to perform the work of a journeyman plumber. The defendants denied the certificate because Mr. Goodsel was not enrolled In an approved apprentice .program. Since there is no way to compel a licensed plumbing contractor to supervise an apprentice, the result 1s to permit the plumbers of this state to have complete control over the number of plumbers to be certified and to did. It appears to us that the trial -;, court was correct 1n ruling as he trial court based his ruling upon the did not need to do so. Since his ruling unconstitutionality was correct, we should affirm Mm If the record Is such as to permit us to do so. The law 1s stated In 5 C.J.S. Appeal and Error Sec. 1464(1) as follows: Although the of the statute, The he appellate court will affirm the judgment, order, or decree from If It 1s sustainable on any legal ground or theory the apparent record, even though such ground or theory differs from that stated by the trial court to be the basis of Its ruling or action, and this 1s true even though such ground or Is not theory urged or argued on appeal by appellee, was not raised In the lower court, and was not considered or passed on by the lower court. appealed on The judgment 1s WE affirmed, t No costs are awarded. CONCUR: t. r. canister, Jr., Utah 2d Chief Justf ce r. Henri Henrlod, J. Allan Crockett, Justice k. l. Justice Tuckett, Justice 7723" (Continued on pagv Hi |