Section 4, par. "d," Chapter 14650, Acts of 1931, is to the effect that:

"The provisions of the Act shall not be construed to apply to: * * * (d) persons practicing beauty culture."

Section 2 defining "barbering" is a part of "the Act" as the latter phrase is used in Section 4 of said Chapter 14650,supra. Therefore since no provisions of "the Act" shall be construed to apply to any person practicing "beauty culture," it seems to me that no part of the definition of the practice of "barbering" as set forth in Section 2 of "the Act" can be applied to persons practicing "beauty culture." This is so because the language of Section 4 is that no provisions of the "Act" can be applied to beauty culturists and certainly the things defined in Section 2 as "barbering" are part of "the Act" which plainly says shall in no part be "construed" to apply to "beauty culture." The language of Section 4 is that "the provisions of the Act (including Section 2) shall not be construed to apply to" persons practicing beauty culture.

Now the Legislature has command of its own language when it enacts laws, and highly regulatory and penal laws ought not to be extended by construction.

Obviously the Legislature intended that its enactment of the barber law should expressly exempt not merely the "practice" of beauty culture, but should exempt "persons" practicing beauty culture. In other words, the Legislature intended to exempt a known class of "persons" who practiced beauty culture rather than the art itself, because the *Page 63 statutory language employs the words "persons practicing beauty culture."

Furthermore, the exemption is not partial but complete. If the "exemption" mentioned in Section 4 of Chapter 14650 is applicable at all to "persons practicing beauty culture" it means that "persons practicing beauty culture" as a known and recognized class of special practitioners are exempt from the whole Act. This is so because Section 4 specifically says that the provisions of "the Act" — meaning the whole of it, not a part of it — shall not apply to "persons practicing beauty culture."

Now what is "beauty culture"? Chapter 14650 does not define it, so we must look to ordinary sources of knowledge for a definition because the Legislature is presumed to have used the term as it is understood in its ordinary sense.

In Volume 3, Encyclopedia Brittanica (1933 Edition), page 281, I find the following definition of "beauty culture," and a discussion of its importance as a national art:

"BEAUTY CULTURE is the science of improving personal appearance. It embraces the care of the skin, the hair, the hands and nails, the teeth and the body, to make them conform to the standard regarded by the current generation as beautiful.

"Since earliest times, cosmetics have played a part in the social life of civilization. Today, specialists in beauty culture employ diet, exercise, hygiene, electricity, X-ray, radium, gland stimulation and gland extracts, water cures, sun-treatments, plastic surgery, massage, osteopathy and mental science to create health and beauty.

"However, hygiene, sunshine, mental science, etc., constitute only a background for the specialized work of the beauty culturist. Largely, and in actual practice, beauty culture is 'the application of cosmetic preparations to the human body by massaging, stroking, kneading, slapping, *Page 64 tapping, stimulating, manipulating, exercising, cleansing, or by means of devices, apparatus or appliances, and arranging, dressing, marcelling, curling, waving, cleansing, singeing, bleaching, coloring, dyeing, tinting or otherwise treating by any means the hair of any person.' This inclusive definition is quoted from the Illinois law which requires that anyone who practices beauty culture have a certificate of registration."

No doubt the Legislature, recognizing that it was impractical to intermingle the regulation of barber shops and beauty parlors, designedly used the language "beauty culture" for the purpose of eliminating persons who practiced "beauty culture" from the barber Act, even though some of the acts of "beauty culture" would amount to barbering as that term is defined in Chapter 14650.

My view is that under Section 4 of said Chapter 14650, Acts of 1931, "persons practicing beauty culture" are wholly exempt from the barbering law and every part of it, even though they may do some of the things that would, standing alone, be within the definition of "barbering" under Section 2 of the Act. All professions overlap to a degree. A physician may pull a tooth without having a dentist's license. A druggist may administer a dose of Sal Hepatica without being a physician. And so a person "practicing beauty culture" may clip a fair lady's hair without erecting a striped pole outside her beauty shop, because clipping hair, insofar as it is merely anincident to the practice of "beauty culture," is a part of "beauty culture" and is not "barbering."

To adopt the view contended for by the respondent in this case simply means that many good women who are now engaged in the profession of "beauty culture" and work single-handed in some little shop of their own where their services are dispensed only to the fair sex, must either hire a barber and open up a barber shop in connection with their *Page 65 beauty parlors, or else close up shop entirely and become mere "hired hands" in a barber shop. For three years the barbering law has not been construed to interfere with legitimate "beauty culturists." The Legislature foresaw what would happen if no exception were written into the barbering law in favor of persons "practicing beauty culture," so they specifically wrote it in the barbering law. I see no warrant for now judicially legislating to the contrary.

At the same time, while I entertain the views hereinbefore expressed, I concur in the conclusion that the petitioner should be remanded for trial under the affidavit and warrant which charges her with operating a "barber shop." I think a jury should be allowed to decide in a case of this kind whether the lady's shop is really a "barber shop" in disguise, or abona fide shop wherein is practiced "beauty culture."

I do not think it proper to determine such a question on a mere stipulation of facts in a habeas corpus case, as such a stipulation is nothing more than a stipulation to confer jurisdiction on the Supreme Court that it does not possess, namely, trial jurisdiction in a misdemeanor case. This case is unlike Cahoon v. Smith, 99 Fla. 1174, 128 Sou. Rep. 632, and kindred cases where some court or magistrate had already judicially decided against the petitioner on a preliminary hearing before habeas corpus was applied for here. In such cases this Court can still act as a court of review, namely, as a court of review over the magistrate's decision that certain facts constitute a crime whereas they are not in law a crime.

I concur in the conclusion that the petitioner should be remanded.

ELLIS, TERRELL and BROWN, J. J., concur. *Page 66