State v. Ballance

• Decision Date: 04 February 1949
• Docket Number: 436
• Parties: STATE v. BALLANCE.
• Court: North Carolina Supreme Court

51 S.E.2d 731

229 N.C. 764

STATE v. BALLANCE.

No. 436

Supreme Court of North Carolina

February 4, 1949

The defendant was charged with violating Chapter 92 of the General Statutes by engaging in the practice of photography for compensation without being licensed so to do by the State Board of Photographic Examiners.

The jury returned a special verdict in which it found, in substance, that on June 25, 1948, in Raleigh, North Carolina a city having a population in excess of twenty-five hundred the defendant took and produced photographs and sold the same at unit prices exceeding ten cents per picture without being licensed to practice photography in North Carolina by the State Board of Photographic Examiners.

The court adjudged upon the special verdict that the defendant was guilty 'under and according to the ruling made by the Supreme Court in the case of State v. N. L. Lawrence reported in Volume 213 at page 674 of the N. C. reports [197 S.E. 586, 116 A.L.R. 1366 ]', ordered that a verdict of guilty as charged be entered against the defendant, and gave judgment that the defendant pay a fine of $50 and the costs. The defendant excepted to the rulings of the court and appealed from the judgment against him.

Harry M. McMullan, Atty. Gen., T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., and E. M. Stanley, of Greensboro, and Womble, Carlyle, Martin & Sandridge, of Winston-Salem, for the State.

Douglass & McMillan and Thomas A. Banks, all of Raleigh, and Deal & Hutchins, of Winston-Salem, for defendant-appellant.

ERVIN Justice.

Chapter 92 of the General Statutes had its origin in Chapter 155 of the Public Laws of 1935, and was enacted to control or regulate the practice of photograhy, which is defined to be 'the profession or occupation of taking or producing photographs or any part thereof for hire. ' G.S. s 92-1. It establishes a State Board of Photographic Examiners consisting of five members designated by the Governor 'all of whom shall be residents of the State of North Carolina and shall have had not less than five (5) years experience as professional photographers. ' G.S. s 92-2. The statute prohibits the practice of photography by persons who have not been licensed by the Board of Photographic Examiners. G.S. s 92-20. Any person engaging in the practice of photography without being so licensed is guilty of a misdemeanor. G.S. s 92-24. The Board issues a license upon application and without examination to every photographer who was continuously engaged in the practice of photography in North Carolina for one year next preceding the passage of the act. G.S. s 92-18. Any other person desiring to practice photography must undergo an examination by the Board and qualify thereon 'as to competency, ability and integrity ' G.S. s 92-10. The statute prescribes that 'Prior to any applicant being admitted to an examination or licensed, said board shall have the power to require proof as to the technical qualifications, business record and moral character of such applicant, and if an applicant shall fail to satisfy the board in any or all of these respects, the board may decline to admit said applicant to examination, or to issue license. ' G.S. s 92-11. The Board is given power upon notice and hearing to revoke any license granted by it to any photographer 'found by the board to be guilty of fraud or unethical practices or of wilful misrepresentation, or found guilty under the laws of the State of North Carolina of any crime involving moral turpitude. ' G.S. s 92-23. The Board is authorized to adopt and enforce all rules and orders necessary to carry out the provisions of the chapter. G.S. s 92-7. It is directed to collect specified examination fees from applicants and specified annual license fees from practicing photographers, and to use the same to defray the expenses of administering the law. G.S. ss 92-13, 92-14, 92-19, 92-27.

The exceptive assignments of error of the accused challenge the validity of his trial, conviction, and sentence upon the specific ground that the legislature transgressed designated provisions of the organic law of the State when it adopted Chapter 92 of the General Statutes.

It is plain that the position of the defendant can not be sustained without overruling State v. Lawrence, 213 N.C. 674, 197 S.E. 586, 116 A.L.R. 1366, where a divided court adjudged this Statute to be constitutional. Consequently, the accused is met at the threshold of the case by the assertion of the State that the only question raised by the appeal has heretofore been deliberately examined and decided and ought to be deemed as settled and closed to further argument.

At first blush, this suggestion appears to have much force. In adjudicating a case, a court is not concerned with what the law ought to be, but its function is to declare what the law is. Moreover, the law must be characterized by stability if men are to resort to it for rules of conduct. These considerations have brought forth the salutary doctrine of stare decisis which proclaims, in effect, that where a principle of law has become settled by a series of decisions, it is binding on the courts and should be followed in similar cases. State v. Dixon, 215 N.C. 161, 1 S.E.2d 521; Spitzer v. Com'rs, 188 N.C. 30, 123 S.E. 636; Williamson v. Rabon, 177 N.C. 302, 98 S.E. 830; Hill v. Atlantic & N. C. R. Co., 143 N.C. 539, 55 S.E. 854, 9 L.R.A., N.S., 606.

But the case at bar does not call the rule of stare decisis in its true sense into play. Here, no series of decisions exists. Spitzer v. Com'rs, supra. We are confronted by a single case which is much weakened as an authoritative precedent by a dissenting opinion 'of acknowledged power and force of reason. ' Collie v. Franklin County Commissioners, 145 N.C. 170, 59 S.E. 44. Indeed, State v. Lawrence, supra, appears to be irreconcilable with the subsequent well considered holding in State v. Harris, 216 N.C. 746, 6 S.E.2d 854, 128 A.L.R. 658. Besides, the doctrine of stare decisis will not be applied in any event to preserve and perpetuate error and grievous wrong. Spitzer v. Com'rs, supra; Patterson v. McCormick, 177 N.C. 448, 99 S.E. 401. As was said in Spitzer v. Com'rs, supra [188 N.C. 30, 123 S.E. 638], 'There is no virtue in sinning against light or in persisting in palpable error, for nothing is settled until it is settled right.'

Some observations of the Supreme Court of Pennsylvania seem specially pertinent. 'When a question involving important public or private rights, extending through all coming time, has been passed upon on a single occasion, and which decision can in no just sense be said to have been acquiesced in, it is not only the right, but the duty, of the court, when properly called upon, to re-examine the questions involved, and again subject them to judicial scrutiny. ' Commonwealth ex rel. Margiotti v. Lawrence, 326 Pa. 526, 193 A. 46, 48.

It is noteworthy that State v. Lawrence, supra, stands alone, and is contrary to the conclusion reached by the courts of last resort in the other seven jurisdictions which have had occasion to pass upon the constitutionality of practically identical statutes professing to regulate the practice of photography through the agency of examining boards. Buehman v. Bechtel, 57 Ariz. 363, 114 P.2d 227, 134 A.L.R. 1374; Sullivan v. DeCerb, 156 Fla. 496, 23 So.2d 571; Bramley v. State, 187 Ga. 826, 2 S.E.2d 647; Territory v. Kraft, 33 Haw. 397; State v. Cromwell, 72 N.D. 565, 9 N.W.2d 914; Wright v. Wiles, 173 Tenn. 334, 117 S.W.2d 736, 119 A.L.R. 456; Moore v. Sutton, 185 Va. 481, 39 S.E.2d 348. The Arizona, Florida, Georgia, North Dakota, and Virginia decisions were handed down after the Lawrence case.

During the past 172 years, the organic law of this State has contained the solemn warning that 'a frequent recurrence to fundamental principles is absolutely necessary, to preserve the blessings of liberty. ' Const.1776, Declaration of Rights, Art. XXI; Const.1868, Art. I, section 29. When the representatives of the people of North Carolina assembled in Congress at Halifax on November 12, 1776, for the express purpose of framing a Constitution, they possessed an acute awareness of the long and bitter struggle of the English speaking race for some substantial measure of dignity and freedom for the individual. They loved liberty and loathed tyranny, and were convinced that government itself must be compelled to respect the inherent rights of the individual if freedom is to be preserved and oppression is to be prevented. In consequence, they inserted in the basic law a declaration of rights designed chiefly to protect the individual from the State. When it rewrote the fundamental law, the Convention of 1868 retained these provisions and incorporated them and certain other guaranties of personal liberty in the First Article of the present State Constitution, which like its counterpart in the Constitution of 1776 is designated a 'Declaration of Rights.'

This appeal presents the question of whether the statute under attack is void for repugnancy to the constitutional guaranties now appearing in Article I, sections 1, 17, and 31 of the Constitution.

Article I, section 1, was placed in the Constitution by the Convention of 1868, and declares 'that we hold it to be self-evident that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness. ' In drafting this section, the Convention borrowed certain phraseology from the Declaration of Independence, changed the words 'these truths' therein appearing to 'it,' and made the interpolation 'the enjoyment of the fruits of their own labor.'

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