1 S.E.2d 521 | N.C. | 1939
BARNHILL, J., concurring.
DEVIN, J., dissenting.
SCHENCK and SEAWELL, JJ., concur in dissent. Defendant, by warrant, was charged with the violation of the N.C. Real Estate License Act (chapter 292, Public Laws of N.C. 1937).
From a conviction in the recorder's court of the city of Charlotte, he appealed to the Superior Court. Upon the return of the jury therein with a verdict of guilty, defendant moved in arrest of judgment on the ground that said N.C. Real Estate License Act is unconstitutional. The judge below allowed the motion and entered an order arresting judgment, to which the State excepted, assigned error and appealed to the Supreme Court. The State is permitted to appeal "Upon arrest of judgment." C. S., 4649 (4). The purpose of chapter 292, Public Laws 1937, is indicated by the title, "An Act to Define Real Estate Brokers and Salesmen; to Provide for the Regulation, Supervision and Licensing Thereof; To Create a Real Estate Commission, and Prescribing the Powers and Duties Thereof; To Provide for the Enforcement of Said Act and Penalties for the Violation Thereof." That the regulation of the trade sought was intended to be both extensive and intensive is apparent from sec. 9 of the Act, in which any one of eight types of misconduct, each *164 defined in broad terms, is made the basis for the revocation or suspension of a real estate broker's or salesman's license. The limit to which the Act goes in an effort to control the conduct of persons engaged in trading in real estate is shown by the following statement of purpose, taken from sec. 17 of the Act: "It is the purpose of this Act to provide for the regulation and discipline of real estate brokers and salesmen doing business within the State of North Carolina to the end that the interests and welfare of the people of said State shall be safeguarded by such regulations, and the fees herein charged shall be used by the commission for the enforcement of the provisions of this Act, and shall be in addition to any and all other privilege taxes, license fees or levies, whether made by the State of North Carolina or any county, city, or town, when the same are made under authority of law." In sec. 18, sixty-four counties out of the one hundred in the State are specifically exempted from the Act.
First. Is this Act constitutional? We think not.
The Constitution of North Carolina provides: "The General Assembly shall not pass any local, private, or special act or resolution. . . . regulating labor, trade, mining, or manufacturing. . . . Any local, private or specialact or resolution passed in violation of the provisions of this section shall be void." Art. II, sec. 29 (Italics ours).
The leading legal definition of "trade" is that of Justice Bradley inMay v. Sloan,
In the case of In re Harris,
Second. Is the N.C. Real Estate License Act, which applies to only thirty-six counties in the State, invalid as conflicting with the general State-wide policy of the current Revenue Act? We think that the act fails in this respect also.
Chapter 127, sec. 109, Public Laws of 1937, provides that real estate brokers and salesmen "shall apply for and obtain from the Commissioner of Revenue a State-wide license for the privilege of engaging in such business or profession." This same section of the Revenue Act regulates the license taxes required of attorneys, physicians, dentists, occulists, engineers, and the members of a number of other professions or trades. Chapter 292, Public Laws of 1937, attempts to impose a further license tax on real estate brokers and salesmen, declaring that the practice of the profession or trade without such additional license shall constitute a misdemeanor. It is this latter act which is here declared invalid.
The decision of this Court in S. v. Warren,
The opinion in the Warren case is controlling in the instant case. Decided cases should be regarded as weighty authority, at least within the Courts which decided them. As Broome puts it in that veritable storehouse of legal learning, Legal Maxims, "It is, then, an established rule to abide by former precedents, stare decisis, where the same points come up again in litigation, as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion, as also because, the law in that case being solemnly declared and determined what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or swerve from according to his private sentiments; he being sworn to determine, not according to his private judgment, but according to the known laws and customs of the land — not delegated to pronounce a new law, but to maintain and expound the old one — jus dicere et non jus dare." Legal Maxims, 8th ed., p. 147. Nor can it be argued that the Warren case is so recent that it may be disregarded without serious disturbance to the body of the law. "The mere lateness of time at which a principle has become established is not a strong argument against its soundness, if nothing has been previously decided inconsistent with it, and it be in itself consistent with legal analogies." Ibid., p. 152. The Warren case laid down the proposition that whenever the General Assembly has, by a general act of State-wide application, adopted a specific licensing policy to be applied uniformly throughout the State with respect to a particular occupation, a local act in derogation of the general act must fail. The reason for this rule is apparent; all acts of the same session of the General Assembly on the same subject are to be considered as one act (Wilson v. Jordan,
The sound distinction recognized in the Warren case, supra — and one which we think determinative in the instant case — is that there is a vast difference between an act which places a like burden upon every member of a trade or profession in every county in the State and one which places a burden upon some members of a trade or profession who have a State-wide license but not upon all of them. This is peculiarly true of dealers in real estate, who, by the very nature of land, are confined largely to small, geographic areas with which they are familiar. The distinction is not merely one between general law and local law; the question is whether discrimination will be permitted among members of a trade or profession when all the members have previously been granted State-wide licenses to practice that trade or profession. A general and State-wide policy has been written into sec. 109 of the Revenue Act. The State has laid down specific requirements for a State-wide license to practice this trade or profession and the defendant has complied therewith and has been granted such license. Now, the General Assembly, by a law effective as to a limited area of the State, in effect revokes that license as to the particular areas involved. All real estate brokers in the State are required to pay the State privilege tax and all are subject to the same general laws in the conduct of their trade; yet, if the provisions of the instant act be upheld, a real estate broker who had paid his State tax would be deprived of the privilege of carrying on his trade in more than one-third of the counties in the State. For example, a broker seeking to sell a farm lying in two counties would be merely an honest business man conducting a legitimate business if the transaction were completed on one corner of the farm, but would be criminal if it were completed at another point on the same farm. The fatal shortcoming of the 1927 Real Estate Brokers' Act was not so much that it was a local act as it was that the act discriminated within a class, to wit: the real estate brokers licensed to do business throughout the State. In the words of Justice Field in SoonHing v. Crowley,
In S. v. Divine,
Cases, such as the instant case, in which the operation of the local measure would seriously impair or partially destroy the uniform and general application of a public law expressly designed for State-wide application, are not to be confused with those cases upholding local acts in those fields of the law in which no general, State-wide policy to the *170
contrary has been expressly adopted. Notable among the cases of the latter type are the cases of an earlier period dealing with the regulation of intoxicating liquors, such as S. v. Joyner,
Nor was the decision of this Court in S. v. Lockey,
The able brief for the State and the argument of amicus curiae were persuasive but not convincing.
For the reasons given, the judgment of the court below is
Affirmed.