Buehman v. Bechtel, Civil 4373

• Decision Date: 16 June 1941
• Docket Number: Civil 4373
• Citation: 114 P.2d 227,57 Ariz. 363
• Parties: A. R. BUEHMAN, MARVIN IRWIN, MARY KELLY, TOM BATE and FLOYD GETSINGER, Constituting the Board of Examiners in Photography, Appellants, v. ORVILLE W. BECHTEL, Appellee
• Court: Arizona Supreme Court

114 P.2d 227

57 Ariz. 363

A. R. BUEHMAN, MARVIN IRWIN, MARY KELLY, TOM BATE and FLOYD GETSINGER, Constituting the Board of Examiners in Photography, Appellants, v. ORVILLE W. BECHTEL, Appellee

Civil No. 4373

Supreme Court of Arizona

June 16, 1941

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.

Mr. Joe Conway, Attorney General, Mr. Earl Anderson and Mr. W. E Polley, Assistant Attorneys General, and Mr. Marshall W Haislip, of Counsel, for Appellants.

(No Appearance for Appellee.)

Mr. H B. Hamilton, of Santa Rosa, New Mexico, and Mr. Allan K Perry, Amici Curiae.

OPINION

ROSS, J.

This action was brought by Orville W. Bechtel against the Board of Examiners in Photography, consisting of A. R. Buehman, Marvin Irwin, Mary Kelly, Tom Bate and Floyd Getsinger, to secure a declaratory judgment as to the constitutional validity of Chapter 31, Laws of 1935, secs. 67-1601 to 67-1615, Arizona Code, 1939. It is claimed that such act is in conflict with and repugnant to the due process and equal protection clauses of the 14th Amendment to the Constitution of the United States and to section 4, Article II of the state Constitution, prohibiting the deprivation of life, liberty or property without due process. Also that it violates subsection 13 of section 19, part 2, Article IV of the state Constitution, prohibiting the granting of special or exclusive privileges by local or special laws.

The trial court held the law was unconstitutional for all the reasons named, and the board has appealed.

A synopsis of the act is as follows:

It defines the practice of photography as "the business or profession, occupation or avocation of taking or producing photographs, or any part thereof, for hire." Sec. 67-1601 (b).

It provides for the appointment of five members to a board of examiners, each of whom shall have been in the practice of photography at least five years in Arizona before his appointment. Sec. 67-1602.

It provides that the board shall organize by electing a president and a secretary-treasurer; that it shall meet publicly at least once a year; that its members shall be paid $5 for each day's attendance and actual traveling expenses, and that the secretary-treasurer shall be allowed an expense account of $100 a year for stenographic assistance; that all fees or other revenue shall be paid into the state treasury and 10% thereof credited to the state's general fund to assist in defraying the cost of the maintenance of the state government, and the remainder credited to "The Photographers' License Fund," to be used only for defraying expenses of the board in the prosecution of violations of the act. Sec. 67-1603.

The board is authorized to examine applicants who desire to practice photography and issue certificates and licenses "to such as qualify as to competency, ability and integrity." It may take testimony "as to technical qualifications or the business record of the applicant, and... may, at its discretion, for sufficient reason, grant or withhold a license to practice." Sec. 67-1604.

The examination fee is $25 and if the applicant fails he may have a second examination upon paying $10. For a third examination he is required to pay the regular fee of $25. Persons residents of the state and licensed to practice may do so under an assumed or fictitious name by placarding in their place of business their full names and such assumed or fictitious name. Sec. 67-1607.

Each practitioner maintaining an established place of business, and who is not merely an employee, is required to pay an annual fee of $5 for an establishment license; a person licensed to practice photography, who is an employee of an establishment in portrait or commercial photography, $3, and in Kodak or amateur finishing, $2. Sec. 67-1609.

Provision is made for those lawfully engaged in the practice at the time the act went into effect to continue without an examination upon paying the regular fee. Sec. 67-1611.

It declares that it shall be unlawful for any unlicensed person or firm to practice photography. Sec. 67-1612.

It provides that anyone who practices or attempts to practice photography in the state without first complying with the act, or who violates any of its provisions, shall be punished by a fine for each offense of not less than $50 nor more than $200, or by imprisonment for not less than 30 days nor more than six months, or both; that "each sale shall be a separate offense." Sec. 67-1613.

Section 67-1614 reads:

"Exemptions. -- Nothing in this act shall be construed to apply:

"(1) To a person in the employ of any newspaper or periodical publication, provided the negatives or photographs made by such person are not sold or offered for sale, or otherwise disposed of in this state for profit;

"(2) To a person who shall make negatives or photographs for experimental purposes or for his or her own personal use or pleasure, provided such negatives or photographs are not sold or offered for sale in this state;

"(3) Nor to a person who is in the employ of any school, college, or institution maintained by the state of Arizona, who shall make negatives or any reproduction therefrom solely for the use of said school, college or institution, for educational or scientific purposes;

"(4) To a licensed medical or dental practitioner who shall make negatives or photographs for clinical purposes:

"(5) To motion picture operators in making motion pictures;

"(6) To x-ray, blue-print, photostatic or motion picture operators."

The act in question does not pretend to regulate the practice of photography in the interests of the business or the public but, rather, in the interests of those professional photographers who are fortunate enough to obtain a license. In other words, under the pretext of regulating the innocuous business or trade of photography, the legislature has passed a law to prohibit certain unlicensed persons from making photographs for hire and from selling them in Arizona when taken for one's own pleasure, use or diversion. Under the act, anyone may take photographs unless he does it for hire, but he may not sell the pictures that he has lawfully taken. He may develop them, show them, and give them away. In other words, they are his property for all purposes except sale.

The legislature may prohibit or regulate the sale of some things, such as intoxicating liquors, habit-forming drugs, lewd and lascivious pictures and things of that kind, but we know of no principle of law that could prevent the owner of a photograph of a baby, flower or landscape from selling it, even though he had taken and finished it without being licensed to do so. The business or profession of taking photographs of people, animals and things does not need regulation. It is one of the innocent, usual occupations in which everybody who so wishes may indulge as a pasttime or a hobby or a vocation, without harm or injury to anybody, or to the general welfare, or the public health and morals, or the peace, safety and comfort of the people. It needs no policing.

Of the cases that have passed upon the precise question, three out of four have held laws attempting to regulate the practice of photography violate the due process and equal protection clauses of the federal and state constitutions. Excerpts from these decisions show the general tenor of the courts' reasoning:

"'Notwithstanding that the policy of legislation is outside the scope of judicial review, in order to protect the individual right of a citizen to engage in a private business or vocation without unreasonable restraint, which right is recognized by the 14th Amendment to the Constitution of the United States and by Article 1, section 8 and Article 11, section 8 of the Constitution of Tennessee, the courts are required to determine whether a statute enacted in the exercise of the police power has any real tendency to protect the public safety, the public health or the public morals, and whether the interests of the public generally, as distinguished from those of a particular class, require such interference.'

'We find it difficult to perceive just how the licensing of photographers and regulation of the taking and finishing of pictures, with the exceptions therein set forth, provided for by this Act, 'has any real tendency to protect the Public safety, the public health or the public morals'; or how and why 'the interests of the public generally, as distinguished from those of a particular class, require such interference' as this Act provides." Wright v. Wiles, 173 Tenn. 334, 117 S.W.2d 736, 738, 119 A.L.R. 456.

"Was the General Assembly authorized, under the police power, to impose these various regulatory conditions upon those engaged in the business of photography or photo-finishing; or, more concretely, was there any basis affecting the public interest for the requirement of examination 'as to competency, ability, and integrity?' In Schlesinger v. Atlanta, 161 Ga. 148, 158, 129 S.E. 861, 866, it was said: 'The right to use one's own property as he sees fit, so long as he does not thereby injure others, and to engage in lawful occupations in proper places and at proper times, is a right which not even the legislative power of the state can take from the individual. The right to make a living is among the greatest of human rights, and, when lawfully pursued, cannot be denied.'... " Bramley v. State, 187 Ga. 826, 2 S.E.2d 647, 651.

"No business, however innocent and harmless, is entirely free from the possibility of becoming, under improper or dishonest management, in some degree inimical to the public interest. The business of shining shoes unless efficiently conducted might result in injury to the material...