Reversed and remanded with directions.
Udall & Udall, of Tucson, and Thomas E. Allin, Jr., of Benson, for appellant.
Fred O. Wilson, Atty. Gen., Chas. Rogers and Maurice Barth, Assts. Atty. Gen. (Darrell R. Parker, Phoenix, of counsel), for appellees.
Fred C. Struckmeyer, Superior Court Judge. Phelps, De Concini and Laprade, JJ., and W. C. Truman, Superior Court Judge, concur. Chief Justice Levi S. Udall and Justice R. C. Stanford, being disqualified, the Honorable Fred C. Struckmeyer, Jr., Judge of Superior Court of Maricopa County, and the Honorable W. C. Truman, Judge of the Superior Court of Pinal County, were called to sit in their stead.
Fred C. Struckmeyer,
Superior Court Judge.
[72 Ariz. 109] This is an appeal from an order of the Superior Court of Maricopa County dismissing appellant's complaint, wherein he sought a declaratory judgment to adjudge that the price-fixing provisions of the Barber Act, Art. 1, ch. 67, A.C.A.1939, were unconstitutional. As incidental to the main cause of action, plaintiff also asked for an injunction restraining the enforcement of these price-fixing provisions. In his complaint [72 Ariz. 110] appellant alleged that he has been for many years a barber duly licensed under the laws of the state of Arizona; that by authority of certain acts of the legislature hereinafter referred to, the State Board of Barber Examiners established within the city of Douglas, Arizona, a minimum price for haircuts of one dollar; that the city of Douglas is adjacent to the Republic of Mexico, wherein prices of less than one dollar for haircuts prevail; that many residents of Douglas patronize the barber shops in Mexico by reason of the price differential; and that appellant's business has decreased and his means of livelihood is threatened. Additional allegations were to the effect that not to accede to the pricefixing regulations subjected him to certain penalties including criminal prosecution and loss of license.
Appellant attacked those statutes and portions of statutes dealing with price-fixing as being unconstitutional and void. The principal section of the Act involved is 67-121, A.C.A.1939, providing as follows:
"67-121. Unfair trade practices. -- (a) The board shall have power to establish minimum prices to be charged for barbering, subject to the conditions hereinafter prescribed.
"(b) Upon receipt of an application and agreement signed by not less than seventy-five (75) per cent of the registered barbers in any district, to establish minimum prices for barbering therein, the board shall set a hearing. Notice of the date and place of such hearing shall be given by the secretary, by registered mail, to every registered barber in such district not less than ten (10) days prior thereto. The board shall, prior to the hearing, investigate the conditions in such district. At the hearing, any barber or other person affected by the proposed agreement may testify or present arguments. After the hearing and investigation, the board may approve or disapprove the agreement as submitted or recommend such changes therein as it may deem proper, including a change of the boundaries of the district, and shall issue an appropriate order. Thereafter, no barber, hair cutter, or apprentice in the district shall charge or collect any price less than that ordered by the board for any barbering work.
"(c) The board, upon its own initiative or upon application of seventy-five (75) per cent of the registered barbers affected, may order a new investigation and hearing regarding the minimum prices theretofore established for any district. Such hearing, and any order issued pursuant thereto, shall be subject to the provisions of this section.
"(d) In establishing minimum prices for any district, the board shall consider only: 1. reasonableness of the proposed prices; 2. local conditions affecting the relation of the barbering profession to public health and safety; 3. minimum prices required to provide sanitary services and appliances necessary to minimize danger to public health, and, 4. costs necessarily incurred [72 Ariz. 111] in such district in maintaining a barber shop in a healthful and sanitary condition.
"(e) In this act, unless the context otherwise requires, 'district' means any city, town, or village, or any clearly defined, contiguous portion thereof or territory in addition thereto, in which ...