Lead Opinion
. Nr C". Code, 1935 (Michie), section 4649, is as follows: “An appeal to the j Supreme Court may be taken by the State in the following cases; and no other: Where judgment has been given for the defendant — (1) Upon' .a special verdict. (2) Upon a demurrer. (3) Upon a motion to quash. B(4) Upon arrest of judgment.”
'The sole question presented on this appeal: Is chapter 155 of the ’ Public Laws of 1935 (N. C. Code, supra, section 7007 [l]-[29]) — “An act to regulate and control the practice of photography” — constitutional? We think so.
The defendant contends that this statute providing for the regulation and licensing of photographers in North Carolina is unconstitutional and void: In that it violates the Constitution of the United States, Fourteenth Amendment, section 1, which provides: “. . . nor shall any state deprive any person of life, liberty, or property, without due process of law,” etc. Also that it violates the following provisions of the Constitution of North Carolina: Article I, section 1: “That we hold
In S. v. Warren,
The following are some of the professions and occupations regulated' in a similar manner by the statutes of this State: Doctors, lawyers, accountants, contractors, pilots, pharmacists, osteopaths, trained nurses, chiropodists, veterinarians, dentists, architects, barbers, cosmetologists or beauticians, engineers, optometrists, chiropractics, embalmers, real estate brokers and salesmen, midwives.
It goes without saying that photography requires skill. It involves, of course, the use of chemicals, celluloid and other combustible materials and there is a certain fire hazard involved. Photographs, photostats and other means of reproducing likenesses are in general use. They are used every day in the courts to illustrate sworn testimony. Photographs are especially used in railroad and automobile accident cases. The detection of forgeries and altered instruments, finger printing, and kindred matters are accomplished by photography. Such photographs greatly enlarged are frequently used as evidence in the courts. Photographs are commonly used in advertising as taking the place of samples and, therefore, dishonest photographs can lend themselves to the perpetration of fraud. Fake photography and careless and inaccurate photography have been the subject of damage suits. Photography in newspapers and magazines is now used as never before. > \ v
_In 6 Ruling Case Law, part sec. 199 (Constitutional Law), p. 203 et seq., is the following: “However difficult it may be to render a satisfactory definition of 'police power/ there seems to be no doubt that it extends to the protection of the lives, health, and property of the citizens, and to the preservation of good order and the public morals, to the restraint and punishment of crime, and to preservation of the general welfare of the community. Various phrases are used to describe the matters in reference to which it may be exercised. It has been frequently said that it extends to a protection of the public health, safety
The mutter of police power has been thoroughly discussed in many decisions in this State in reference to professions and occupations. ^
In S. v. Call,
In S. v. Lockey,
The matter is largely in the discretion of the General Assembly as to what professions and occupations are within the police power of the State and subject to regulation.. Of course, due regard must always be had to the provisions of the Constitution of the United States, 14th Amendment, sec. 1, and Constitution of North Carolina,1" Art. I, sec. 8, and the other provisions before mentioned.
It is equally Avell settled that no act of the General Assembly ought to be declared violative of any constitutional provision unless the conflict is so clear that no reasonable doubt can arise. Coble v. Comrs.,
In S. v. Lockey, supra, p. 554, Ave find: “The defendant contends that the General Assembly had no authority to create an expense and arbitrarily and unreasonably classify the citizens and taxpayers of the State and unjustly place the whole burden upon a few thousand of a particular class — 4he barbers. He further contends that the act makes a further arbitrary and unreasonable classification among the barbers themselves in making the act applicable to towns of 2,000 or more population. We think the act constitutional and not arbitrary.” Roach v. Durham,
Taking the entire act and considering it as a whole, we cannot hold it unconstitutional. We cannot say that it is arbitrary, or unreasonable or an unconstitutional delegation of legislative authority. We think the conclusion in the brief of the State correct: “It is submitted that the Legislature of North Carolina is the proper division of the State’s government to determine in the first instance the need of regulating a given occupation. The Legislature has determined upon good and sufficient ground . . . that it is in the public interest to regulate the licensing and practice of photography. Such regulation falls within the
For tbe reasons given, tbe judgment of tbe court below is
Reversed.
Dissenting Opinion
dissenting: Does tbe General Assembly have power to create an administrative agency with power to deprive a citizen of tbe right to practice one of tbe ordinary and usual trades, such as commercial photography? Tbe majority view answers this-..question in tbe affirmative. From this result I am compelled to dissent, as I do not find tbe reasoning of tbe majority opinion convincing either' as -to tbe present state of tbe law on tbe subject or as to tbe social utility^ and desirability of tbe legal theory there propounded. ' - -
Tbe decision of tbe Court is predicated largely upon tbe doctrines of S. v. Warren,
Tbe constitutional limits of tbe power of tbe General Assembly to regulate vocations through licensing has heretofore been limited strictly to tbe professions, with tbe possible exception of barbering, in which case tbe protection of tbe public health was so obviously involved. Regulation by licensing of tbe practice of medicine and surgery (S. v. Van Doran,
The limits heretofore recognized with respect to the regulation of business by. administrative licensing were not accidental. In S. v. Lockey,
The right to iicense upon examination necessarily implies the power to exclude by refusing to grant such license. The power to exclude men from the ordinary and usual trades and callings common to all- communities is the power to deprive men of the right to earn an honest livelihood. ’ The right to earn a livelihood is “fundamental, natural,' inherent and inalienable, and is one of the most sacred and most valuable rights of a citizen. A person’s business occupation or calling is 'property’ within the meaning of the constitutional provisions as to due process of law and. is also included in the right to liberty and the pursuit of happiness. The right of a person to pursue a calling consistent with proper and reasonable police regulations which the particular situation may sanction, cannot be taken away by legislative enactment. The common businesses and callings of life, the ordinary trades and pursuits which are innocent in themselves and which have been followed in all communities from time immemorial, must, therefore, be free in the United States to all alike upon the same terms. . . . Moreover, it has been held that the right to choose one’s occupation includes the right to be free from unlawful interference or, control in the conduct of it.” 11 Am. Jur., “Constitutional Law,” s, 336N The discretionary power to control admission to an ordinary trade or calling has never existed in the General Assembly. “Eegulation of occupations cannot be valid where it amounts to an arbitrary or unwarranted interference with the right of the citizen to pursue any lawful business. It is dependent upon a reasonable necessity for its exercise to protect the health, safety, morals or general welfare of the state, and unless an act restrict
This photographers licensing act can only be justified, if at all, as a valid exercise of the police power. J As Willis has so accurately stated, “There are two main requirements of a proper exercise of the police power: (1) There must be a social interest to be protected which is more important than the social interest in personal liberty, and (2) there must be, as a means for the accomplishment of this end, something which bears a substantial relation thereto.” Constitutional Law, p. 728/] This is essentially class legislation put forward by a particular group' of tradesmen to the end that those now within the trade may limit newcomers seeking to enter the field of their livelihood. The advocates of the measure insist that its approval will necessarily make available tov the public more skilled and more honest photographers. In return for this vague promise of greater public service the established photographers will be given a virtual monopoly of the trade and with it such incidentals as the power to control prices and the character of their services. The “social interest” which this law would tend to protect is a very general one, so evanescent in its characteristics as to belong in the realm of metaphysics and psychic phenomena. On the other hand, the very real and positive benefits to the particular group at the expense of the loss of liberty of citizens generally is quite tangible. In order that a trade guild with state-granted powers of exclusion be established, a serious and dangerous abridgement of one of the most precious rights of American citizens — the right to earn a livelihood — is advocated.
Written into our organic law is a strong repulsion for special privileges and monopolies. In our Bill of Rights we find, “No man or set of men are entitled to exclusive or separate emoluments or privileges
■ Old truths are valuable ballast and tbe'experienced mariner does not cast them overboard at tbe first suggestion of some passenger new to tbe ways of tbe sea. In our rapidly changing social and economic life it may become necessary to advance tbe banner of tbe police power into new and as yet unknown territory, but I am convinced tbat tbe instant case is not one demanding tbat tbe old and recognized boundaries of tbe police power be ignored. Almost every trade and calling is tinged witb some element of social interest or public service, for if tbe work bas no social utility it rarely survives. However, few trades or callings are so essentially vested witb a social interest as to justify their establishment, by legislative grant, as close-knit, self-governing, trade monopolies having tbe power to exclude those seeking to compete witb veterans of tbe craft. Tbe life of our society is not yet so. thoroughly regimented tbat tbe right to work and earn an honest living in tbe trade of one’s choice is dependent upon tbe approval of some bureau, commission, or examining board, itself interested perhaps in excluding new workers from its own crowded vineyard. Nor am I yet convinced tbat it would be better so. Tbe view of tbe majority in this case, in my opinion, goes well beyond tbe previously approved limits of tbe valid exercise of tbe police power in this State.
While photography requires some skill, it is tbe same type of skill required by other trades and vocations. Such danger as arises from tbe use of chemicals, celluloid and other combustible materials, is to tbe individual and not to tbe public as a whole. Tbe fire hazard, if any, is not -near so great as tbat resulting from tbe operation of dry cleaning 'plants, gasoline stations and other ordinary trades. Photographs, it is true, are used in evidence. However, as stated in tbe majority opinion, they are used only to illustrate sworn testimony. They are not admis
There are those lacking in moral character connected with all trades and callings. Good morals cannot be created by legislation. The mere fact that some who are. photographers have an opportunity to perpetrate frauds is not unusual. The quality of a photograph can more easily be detected by the lay public than can the quality of cloth or other articles of merchandise, particularly when such merchandise is of a mechanical composition, such as watches and automobiles. I am, therefore, unable to conceive how the practice of photography has such a rational and substantial relationship to social needs or to public health, safety and good morals as to make it a subject of legislation under the police power of the State.