Montana Attorney General Opinion 16-56

Opinion No. 56. Cosmetology-Beauty Culturist, Stu- dent Fees-Civillan Rehabilitation, Student Beauty Culturists. HELD: The State Examining 52 OPINIONS OF THE ATTORNEY GENERAL Board of Beauty Culturists is not au- thorized to require payment of a re- gistration fee by students who enter a beauty school for training since such students are not practicing or teach- ing cosmetology. March 9, 1935. Mr. Leif Fredericks Supervisor, Civilian Rehabilitation The Capitol This will acknowledge receipt of your letter of February 8, which is as follows: "I have learned that the State Ex- amining Board of Beauty Culturists recently issued an order requiring that a registration fee of $15 must be paid to the Board by all persons wishing to enter a Beauty School for training, before their enrollment will be permitted. It seems to me that this is a usurpation of authority neither granted nor implied by the state law regulating the practice of cosmetology, and I would like a rul- ing by your office on the legality of the Board's action. "The Rehabilitation Bureau pro- vides training for this trade or pro- fession to a number of persons each year, and the imposition of this fee will result in additional and unwar- ranted training costs. In its efforts to restore handicapped men and women to economic usefulness, the Bureau avails itself of the instruc- tional facilities of numerous schools and educational institutions. Never before, in my experience, has a State Board assessed what amounts to a filing fee against a person wishing to prepare himself for a gainful oc- cupation in a trade school. "Another questionable regulation promulgated by the Board is one limiting to ten the number of stu- dents to an instructor in a beauty school, and setting a definite time or date for enrollment. The operation of this rule or order may conceivably interfere with expeditious training, when such is important, and cause considerable inconvenience." Section 15 of Chapter 104, Laws of Montana, 1929, provides: "Each ap- plicant for examination and applicant for admission without examination by virtue of a license issued in another jurisdiction, shall pay at the time of such application a fee of Ten Dollars ($10.00). Each person engaged in any of the practices defined herein shall pay a fee of Five Dollars ($5.00) for the issuance of the license certifi- cate and each renewal thereof. Each person conducting a school referred to herein shall pay an annual fee of Twenty Five Dollars ($25.00). Such fees shall be paid in advance to the Secretary of the Board, and no mon- eys shall be paid out of the funds of the Board except upon warrant au- thorized by majority vote of the Board and signed by the President and Secretary of the Board." Section 15, supra, is the only pro- vision which we have found authoriz- ing the Montana State Examining Board of Beauty Culturists to assess or col~ect fees, and its authority to collect a registration fee of $15.00 from all persons matriculating in a school of beauty culture, must be found in that section. "Where fees cannot be exacted by an officer for the purposes pre- scribed in the statute authorizing them, they cannot be exacted at all, and, if collected without authority, can be recovered by the person from whom they are exacted unless he is otherwise barred." (State v. Dun- bar, 53 Ore. 45, 98 Pac. 878, 20 L. R. A. (U. S.) 1015). With this general observation in mind, when we analyze Section 15, supra, we are unable to understand by what distortion of language it could be said that this section gives the board authority to adopt the rule to which you refer. The board may exact fees from three classes of per- sons-applicants for admission to practice ($10.00), persons engaged in the practice or teaching of cosmet- ology ($5.00 per year), and persons conducting a school of beauty culture ($25.00 per year)-and from no others. Clearly, students enrolling in a school of beauty culture, are not per- sons applying for admission to prac- tice and are not persons conducting a school of beauty culture. Are they persons engaged in the practice or teaching of cosmetology ? We think not. OPINIONS ,OF THE ATTORNEY GENERAL 53 We understand that it is sometimes the practice for schools of beauty cul- ture to solicit patrons and for stu- dents enrolled therein to "practice" upon such patrons under the supervi- sion of a teacher. It is not infrequent for the schools to charge such patrons for the service thus rendered, which charge, we are told, is usually suffi- cient to pay for the cost of materials used on the patron and other costs, but is less than the charge usually asked for by licensed practitioners. The same practice is followed by many reputable medical and dental colleges and recently, even in law schools. But we have been unable to find any statutory or judicial expres- sion to the effect that internes or students employed in dental or legal clinics are engaged in the practice of medicine, dentistry or law. On the contrary, the authorities we have seen are all the other way. (Beaver Brook Resort Co. v. Stevens, 230 Pac. 121; State v. Faatz, 76 Atl. 295.) By the same token we do not feel that the courts would hold that students studying in a school of beauty culture could be said to be "engaged in the practice of cosmetology". "To practice a profession is to hold one's self out as following that pro- fession as a calling as one's usual business." (Beaver Brook Resort Co. v. Stevens, supra.) In State v. Faatz, supra, it was held that the fact that an unregis- tered assistant or student employee of a licensed dentist filled a tooth for a patron and thereafter collected a fee v.:hich he paid over to his employ- er, dld not constitute practicing den- tistry without a license. The court i~ tha~, case made this apt distinc- ~lon: A young man may be prepar- mg to enter the dental profession; but he cannot, within the meaning of the statute, be said 'to engage in the practice of dentistry' until he em- barks in it, until he holds himself out as a dentist, either by a series of con- tinuous acts, covert or open, or by advertising himself in some way as a dentist, or as a doctor of dental sur- gery. If he hold himself out to the public as a duly qualified dentist em- barked in the profession, and offer to practice as such, this would be en- gaging in the practice of dentistry within the true sense and meaning of this act, even though his first patient had not yet called." Again, it must be remembered that Chapter 104, supra, as amended, is' a penal and not a remedial statute. Any- one violating its provisions is guilty of a crime. (Section 17, as amended by Chapter 13, Laws of 1931.) Section 2 of this Act says that "the practice and teaching of cosmetology is defined to be and includes any or all work generally and usually includ- ed in the term 'Hairdressing' and 'Beauty Culture' and performed in so- cal~ed hairdressing and beauty shops, WhlCh work is done for the embellish- ment, cleanliness and beautification of the hair, scalp, face, arms or hands." Such a definition may not be strained by construction to include terms and restrictions not intended by the legislature, as that intent is man- ifested by the language used. The question is not what the legislature actually meant to say but what is the meaning of what the legislature has said. The definition quoted is ex- pressly limited to "anv or all work * * * performed in so-cailed hairdressing and beauty shops." It does not ex- tend to work performed in cosmetol- ogy or beauty schools. Again, the authority asserted by the board in adopting the rule we are considering would seem to contra- vene certain express provisions of the act. If it be contended that students of so-called beauty schools are en- gag-ed in the practice of cosmetology and therefore liable to pay fees as- sessed by the board then such stu- dents should first be required to com- ply with Section 3 of Chapter 104, supra, as amended by Chapter 14, Laws of Montana, 1931, which sets forth the requirements to teach or to practice cosmetology, and Section 8 relating to the examination of app1i~ cants for admission to practice. Even if all that has been said here- in is incorrect and the courts should hold that the students of a school are engaged in the practice of cosmetol- ogy and must pay the fee required of practitioners, that fee is fixed by Sec- tion 15 at $5.00 per year and the leg- islature alone can change it. We also wish to call your attention to the following provision of Chapter 54 OPINIONS OF THE ATTORNEY GENERAL 85, Laws of Montana, 1935, which be- came law on March 5, when it was ap- proved by the Governor: "Provided that physically handicapped persons trained for cosmetology under the state Bureau of Vocational Rehabili- tation shall, for a period of one year immediately following their gradua- tion, be' exempted from this examina- tion and the fees described in Section 15 of this Act. Upon certification from the State Supervisor of Rehabil- itation that a Bureau beneficiary has successfully completed the required apprenticeship or training in a shop or beauty school, the Secretary of the state Board shall issue to such person the necessary certificate or license to practice the profession in Montana." We believe that it was the intention of the legislature, in adopting this be- nign provision, to exempt those phy- sically handicapped persons trained by your department from the pay- ment of all fees until they have been practicing as cosmetologists for a pe- riod of one year. You also question the authority of the board to adopt a rule requiring an inspector for every ten students en- rolled in a school of beauty culture, and setting a definite time or date for enrollment. We have been advised that the validity of this rule has been attacked in an action pending before the court in the Thirteenth Judicial District, in and for the County of Yel- lowstone. That being true, it would be improper for this office to discuss the matter.