Appeal from decree of Court of Common Pleas of Dauphin County, No. 2466 Equity Docket and No. 110 Commonwealth Docket, 1961, in case of Beauty Hall, Inc. v. State Board of Cosmetology, Alan L. Emlen, Commissioner of Professional and Occupational Affairs, Laverta Harper et al.
Charles A. Woods, Jr., Deputy Attorney General, with him David S. Molod, Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for appellants.
Robert R. Rice, with him Francis B. Haas, Jr., Isadore Gottlieb, and McNees, Wallace & Nurick, for appellee.
John J. Shumaker, with him Carl G. Wass, and Shumaker and Placey, for amici curiae.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Roberts concurs in the result.
This is an appeal by the Commonwealth from a final decree which permanently enjoined the State Board of Cosmetology from enforcing a 1959 amendment to the Beauty Culture Law*fn1 on the grounds that it deprives or interferes with plaintiff-appellee's property rights without due process of law in violation of § 1 of the Fourteenth Amendment to the United States Constitution*fn2 and Article I, § 1, of the Pennsylvania Constitution.*fn3 The decree must be vacated because the financial loss allegedly suffered by appellee does not constitute a deprivation of or interference with property by the state within the meaning of the constitutional provisions asserted by it and does not provide the requisite standing to attack the constitutionality of the 1959 legislative enactment.
Purportedly, the Beauty Culture Law was enacted by the Legislature for "but one purpose, and that is the protection of patrons of . . . beauty shops." Department of Licenses and Inspections v. Weber, 394 Pa. 466, 471, 147 A.2d 326, 328 (1959). One of the methods by which this purpose is secured is the ensuring of the fitness of persons who perform the functions of a beauty operator upon patrons. Thus, these functions cannot be practiced by one who has not obtained a certificate
of registration from the Department of Public Instruction.*fn4 To obtain such a certificate one must pass an examination promulgated and administered by the State Board of Cosmetology.*fn5 Before 1959 there were two basic prerequisites to sitting for the examination -- an age requirement of sixteen years and an instruction requirement of one thousand hours in a school of beauty culture registered as such with the Department of Public Instruction.*fn6 The plaintiff-appellee, Beauty Hall, Inc., is such a registered school of beauty culture.
In 1959 the Legislature added a third basic prerequisite to sitting for the state examination, viz., a tenth grade education or its equivalent.*fn7 It is this amendment which appellee-beauty school attacks. But this amendment does not direct appellee to do any act or refrain from doing any act. It does not require appellee to turn away prospective beauty school students who are without a tenth grade education or its equivalent; the educational requirement is a prerequisite to taking the state examination not to entering appellee's school. Nor is there any suggestion that one of the objects of the Legislature in enacting the amendment was to regulate appellee's affairs. The ostensible object
of the Legislature in enacting the amendment was the further protection of beauty parlor patrons. The means of obtaining the object is the direct regulation of the individual who desires to become a beauty operator; only this ...