Bramley v. State

Citation2 S.E.2d 647,187 Ga. 826
Decision Date14 March 1939
Docket Number12501.
CourtSupreme Court of Georgia

Rehearing Denied March 24, 1939. [Copyrighted Material Omitted]

Syllabus by the Court.

The act of the General Assembly approved March 25, 1937, Ga.L.1937 p. 280, establishing a State board of photographic examiners, and providing, among other things, that except as to stated classes, person desiring to engage in the business of photography or photofinishing must stand an examination and thereby qualify as to competency, ability, and integrity, and denouncing as a crime a violation of any of the terms of the act, is unconstitutional and void as an exercise of the police power, in that the prescribed regulations are imposed upon a lawful business, and considered as a whole are such as do not bear any reasonable or substantial relation to the public health, safety, or morality, or other phase of the general welfare. Accordingly, the accusation filed against the defendant in this case charging a violation of this statute, was subject to demurrer for the reasons stated. The superior court erred in not sustaining the demurrer and quashing the accusation.

Leonard Farkas and Walter H. Burt, both of Albany, for plaintiff in error.

Carl E. Crow, Sol. Gen., of Camilla, M. J. Yeomans, Atty. Gen., O. H. Dukes, Asst. Atty. Gen., and Emil J. Clower, of Atlanta, for defendant in error.

J. E. Bramley was charged by an accusation filed in the superior court of Calhoun County with an alleged violation of the act approved March 25, 1937, relating to the business of photography. Ga.L.1937, pp. 280-291. He filed a general and special demurrer to the accusation, contending that it did not charge any offense against the laws of this State, and that the act on which it was based is unconstitutional and void, for several reasons stated. The court overruled the demurrer, and the defendant excepted. The caption of the act in question is as follows: 'An Act to establish a State Board of Photographic Examiners, providing for the appointment of members thereof, defining the jurisdiction, powers, duties and compensation of said Board; to provide the manner of licensing photographers; to prescribe certain fees required of applicants and for renewal of licenses to provide for the issuance of licenses to practice photography and for the revocation or suspension of such licenses upon certain conditions; to provide for the enforcement of the provisions of this Act and prescribing certain penalties for the violation of the same; defining certain terms as used herein; and for other purposes.' The following are among its provisions:

Article 1, § 1, declares, among others, the following definitions "Photography'--(a) The art or process of reproduction, recording the visible and invisible image through the action of light upon chemically sensitized substance or material. (b) The processes of projecting and registering images by means of lens and camera upon sensitized materials, development and fixation of the latent image to render same visible and permanent and the subsequent reproduction or transfer of such image, either negative or positive, upon sensitized material and by aid of light and chemical action. 'Photo finishing'--The process of reproducing or transferring any image made by means of camera and lens, either negative or positive upon sensitized material by aid of light and chemical action. 'The practice of photography'--The profession, occupation, or avocation of taking or producing photographs or any part thereof for hire. 'Photographer'--Any individual, firm, person or corporation who

shall practice photography. * * * That for the purposes of this Act the term 'Itinerant nonresident photographer' is defined to be any person, frim, or corporation, engaged in the business of going into and about the city or county soliciting orders through the sale of coupons, or otherwise, for portrait photographic work, enlargements or portraits, and tinted portraits whether in watercolors or in oils, and not having within this State a permanently established and bona fide place of business of at least one year standing before applying for the license permit to do business.'

Article 2 provides for the appointment of a board of photographic examiners consisting of five members. Section 1. They shall elect one of their number to act as chairman. The joint secretary of the State examining boards shall act as secretary to this board, and he shall keep an accurate record of all the proceedings of the board, and shall collect and disburse the fees, on approval of the president of the board. Section 2. He shall also act as treasurer. Section 3. The members of the board shall receive $7 and actual and necessary expenses for each day actually devoted to the performance of their duties, to be paid only from funds collected under the act. Section 4.

Article 3 provides as follows: The board shall have a common seal, and shall formulate rules to govern its actions, and may take testimony and proof concerning all matters within its jurisdiction. Section 1. It shall keep a record of its proceedings containing specified information, which shall be open to public inspection. Section 2. The board is authorized to conduct hearings in any part of the State, or it may designate any member to do so. Section 4. The board is also given the power to appoint such technical, legal, or other assistants as may be necessary to administer the act. Section 5.

Article 4 declares: The board shall provide for examination of applicants who desire to practice photography in this State, and shall collect fees for such examination, and issue certificates of registration and licenses to any one who shall 'qualify as to competency, ability and integrity.' The board may issue temporary certificates to practice photography until an examination is held; provided that applicants are, in the opinion of the board, entitled thereto, and other prescribed conditions are complied with. Section 1. Before any applicant shall be admitted to an examination or be licensed, the board shall have 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 such applicant to examination, or to issue license.' Section 2. 'The Board shall provide a place and give a written, or an oral or a practical examination at least twice a year to all duly qualified applicants covering the two branches of photography, to-wit: Photography and photo-finishing. Separate certificates shall be provided for each branch. A certificate for one branch shall not permit the practicing in the other branch, although any photographer may hold certificates in both branches if qualified under this Act. All applicants may take the examinations in either or both branches and the examination fee as herein set forth shall cover both branches if taken at the same time.' Section 3. 'Every person desiring to commence the practice of photography in this State shall file an application for a license with the Board on a form prescribed by it, accompanied with a photograph of self, head size not less than two and one half inches. At the time of making such application the applicant shall deposit with the Board an examination fee of fifteen ($15.00) dollars; Provided, that the examination fees for persons engaged exclusively in the development, finishing, and/or enlarging of pictures shall be in the sum of seven and one-half ($7.50) dollars. All applicants must appear for examination at the time and place designated by the Board and shall present such references and credentials as the Board may require, and shall give satisfactory evidence as to their competency and fitness to conduct the practice of photography, based on their technical knowledge, their business record, and their character.' Section 4. After failure on the first examination, an applicant may be given three subsequent examinations at $10 each. Section 5. Every applicant successfully passing an examination shall be registered in the records of the board 'as a qualified photographer in the branches in which he has been successful,' and shall receive license accordingly. Section 6. Every person desiring to commence the study of photography for the purpose of practicing it shall file with the board a certificate of a licensed photographer, stating, with other

facts, that the applicant has begun to study photography with him, and shall furnish such other information as the board may require. Section 7. 'The Board shall, upon application, issue a license to every photographer who has been continuously engaged in the practice of photography and/or photo-finishing in this State for one year next preceding the passage of this Act, without examination. All applications for license under this section shall be accompanied by a fee of five ($5.00) dollars, in addition to the annual license fee hereinafter prescribed, and such application must be made within 30 days after notification from the Board.' Section 9. 'All licensees who are employees of an established place in the State of Georgia, for the practice of photography or photo-finishing, shall pay an annual license fee of three ($3.00) dollars.' Section 10. 'All photographers shall submit a certificate from the Board of Health showing a negative Wasserman test when making application for license.' Section 10(b). 'No person, firm or corporation shall sell, offer for sale, or solicit orders for any product of photography unless duly registered under the terms of this Act, or employed by a person, firm or corporation duly registered under the terms of this Act.' Section 11. 'Every...

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