Moore v. Sutton

• Decision Date: 11 September 1946
• Citation: 39 S.E.2d 348,185 Va. 481
• Court: Virginia Supreme Court
• Parties: MOORE. v. SUTTON.

39 S.E.2d 348

185 Va. 481

MOORE.

v.SUTTON.

Supreme Court of Appeals of Virginia.

Sept. 11, 1946.

Error to Law and Chancery Court of City of Norfolk; O. L. Shackleford, Judge.

Mandamus proceeding by Jack W. Sutton against W. R. Moore, Commissioner, etc., of the City of Norfolk to compel the respondent to grant application for a license to engage in the business of a photographer. Judgment for plaintiff, and the defendant brings error.

Affirmed.

Before HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON and SPRATLEY, JJ.

Breeden & Hoffman, of Norfolk, Abram P. Staples, Atty. Gen., and Edwin B. Jones, Asst. Atty. Gen., for plaintiff in error.

W. L. Devany, Jr., of Norfolk, for defendant in error.

BROWNING, Justice.

This case grows out of the application of Jack W. Sutton, the defendant in error, to the commissioner of revenue of the city of Norfolk, for a license to engage in the business of a photographer in that city. The license was refused because the applicant had not complied with the require ments of an act regulating the practice of photography. He presented to the court a petition for a mandamus to compel the issuance of the license upon the payment of the appropriate fee exacted by the tax codes. The trial court issued the writ after hearing the evidence and argument of counsel. It is before us upon a writ of error.

The constitutionality of the act which is known as the Photographic Examiners Act is questioned. It consists of Chapter 342 of the Acts of the General Assembly of 1938 (Chapter 175D of Michie's Code of Virginia).

It is deemed unnecessary to quote the statute or any of its sections in full.

It is perhaps enough to say that its provisions require every person desiring to commence the practice of photography or any of its branches, for compensation or profit, or in the hope of such reward, to file an application for a certificate of registration with the board on a form furnished by it. He shall submit to an examination by the board to determine his qualifications. Before admitting any person to an examination the board shall require reasonable evidence of the technical qualifications of the applicant. A fee of $25 shall be paid to the board by each applicant for an examination, to be reduced to $15, for a lesser privilege than the general practice of photography. There are certain exemptions to the operation of the statute which need not be stated as well as some details which are unimportant to our consideration.

The board is composed of five members, appointed by the Governor, each of whom is a resident of the state of Virginia, and shall have not less than five years experience as a professional photographer or photo-finisher. This is the first challenge of the act to reach this court.

In approaching the consideration of the subject let us say that we are not unmindful of the fact that the modernistic trends, the complexity of industrial and social interests and the ever increasing growth of human needs, demand a much less rigid adherence to constitutional inhibitions than formerly obtained; that thecourts may not intrench upon the legislative right to determine the wisdom or lack of it, of its enactments; that the presumptions favor the constitutionality of a legislative act. Even so, when the legislature exceeds its authority and patently goes beyond the margin delimited by the Constitution it becomes the bounden duty of the courts to step into the breach and save that muniment of government which is the state's pillar of strength.

Appended to the brief of the defendant in error is a copy of the opinion of the eminent Judge of the Corporation Court of the City of Danville, in the case of the Commonwealth v. Walton, from which no appeal seems to have been had.

In that case the precise act, with which we are concerned, was assailed on the same grounds as are here urged.

It was impressively said:

"* * *, if the fact of enactment itself concluded all questions of its constitutionality, the Constitution would amount to no more than an abstract and oratorical statement of human rights; a creed to be recited, but not believed in.

"Upon the most careful consideration of which I am capable, I fail to see that the public health, the public safety, the public morals or the general welfare, regarding that term in its widest significance, can be promoted by requiring a photographer who makes pictures of human beings to take an examination before practicing his trade or profession."

Each of the above objectives are here urged as compelling reasons why the constitutionality of the act should be upheld. Its advocates apparently find comfort under the protecting wings of the police power of the state.

We do not think the business or trade, and its incidents, and those who practice it, and who are sought to be protected by the act, furnish any justification for invoking such power.

It does not appear, in our opinion, that the public health, the public safety, the public morals or any public interest, is so interwoven with or affected by the occupation of photography, as to furnish any ra tional basis for urging that, under any conception of the police power, the legislature may lift an ordinary calling or business out of its natural channel and setting and clothe it with a public welfare vesture, so as to render nugatory a solemn constitutional inhibition.

One of the best reasoned cases we have crossed is State v. Cromwell, 72 N.D. 565, 9 N.W.2d 914, 921, in which it is said:

"Why is the business of photography any more charged with the possibility of harm to the public or to any individual than is any other of the ordinary occupations in which men engage. After all, the portrayal of subjects, animate or inanimate, is not new. It has been done since that remote time when Ab the caveman scratched his crude drawings of the saber-toothed tiger and the mastodon on the rock walls of his primitive dwelling. And modern man, aided by chemistry and physics merely has so mechanized the process during the last hundred years as to make it possible for a much larger proportion of his fellows to make use of it and called it photography. So far as knowledge, training and skill are concerned, whether acquired from books or thru practice and experience, it cannot be gainsaid that they are required by the farmer, the storekeeper, the carpenter, the machinist, the tailor, the actor, the musician—in fact by every individual successfully engaged in a definitely specialized occupation, be it called a trade, a business, an art or a profession. And there is as much ground for requiring a mental and moral examination preliminary to licensing those who may engage in any of these occupations as there is for those who engage in the business of photography, yet, who would maintain that such a requirement would be reasonable? Nor does it seem to us that photography affords such peculiar opportunities for fraud as to require the safeguards purportedly provided by this regulatory statute. We cannot see why there is greater opportunity in this business to defraud the individual or the public generally than there is in any of the other ordinary occupations. Every occupation affords some opportunity for fraud, yet, on that account, should no one be permitted to engage in any business or occupationunless his good character, his ability, his learning and his skill first have been shown by examination to the satisfaction of a board composed of those who will be his competitors if he is licensed by them?"

The observations just quoted are as apt and fit here as there. We are quite won by their force and convincingness.

This court said in Young v. Commonwealth, 101 Va. 853, 862, 45 S.E. 327, 328, speaking of the word "liberty",...