Moore v. Sutton, Record No. 3028.

• Decision Date: 11 September 1946
• Docket Number: Record No. 3028.
• Citation: 185 Va. 481
• Parties: W. R. MOORE, COMMISSIONER, ETC. v. JACK W. SUTTON.
• Court: Virginia Supreme Court

Page 481

185 Va. 481

W. R. MOORE, COMMISSIONER, ETC. v. JACK W. SUTTON.

Record No. 3028.

Supreme Court of Virginia, Staunton.

September 11, 1946.

Present, Holt, Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.

1. CONSTITUTIONAL LAW — Operation and Effect of Constitutions — Adherence to Constitutional Inhibitions. — 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.

2. CONSTITUTIONAL LAW — Courts Not to Intrench on Legislative Rights — Wisdom of Enactments. — Courts may not intrench upon the legislative right to determine the wisdom, or lack of it, of its enactments.

3. CONSTITUTIONAL LAW — Presumption of Constitutionality. — Presumptions favor the constitutionality of a legislative act.

4. CONSTITUTIONAL LAW — Legislature Exceeding Authority — Duty of Courts. — 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.

5. CONSTITUTIONAL LAW — Police Power — Regulating Business of Photography. — The business or trade of photography, and its incidents, and those who practice it, and who are sought to be protected by sections 4359(92) to 4359(102) of the Code of 1942, do not furnish any justification for invoking the police power of the state.

6. CONSTITUTIONAL LAW — Police Power — Regulating Business of Photography. — The public health, the public safety, the public morals or any public interest, is not so interwoven with or affected by the occupation of photography as to furnish any rational 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.

7. CONSTITUTIONAL LAW — Police Power — Test for Determining Whether Act within Police Power of the State. — The test to be applied in determining whether an Act is within the police power of the state is whether the Act is one in the interest of the public health, morals, safety, or the general welfare. If it is not it exceeds the police power and for that reason is invalid.

8. CONSTITUTIONAL LAW - Validity of Act Regulating Business of Photography — Case at Bar. — The instant case was a proceeding by mandamus to compel the issuance of a license to engage in the business of a photographer. The constitutionality of sections 4359(92) to 4359(102) of the Code of 1942 was questioned. These provisions require every person desiring to commence the practice of photography to file an application for a certificate of registration and to submit to an examination by a board to determine his qualifications, and that the board shall require reasonable evidence of the technical qualifications of the applicant.

Held: That the sections in question trespass upon the right of the citizen as guaranteed by the Constitution of Virginia, article 1, section 1. They constitute an unjustifiable encroachment and intrenchment upon those rights.

Error to a judgment of the Court of Law and Chancery of the city of Norfolk. Hon. O. L. Shackleford, judge presiding.

The opinion states the case.

Breeden & Hoffman, Abram P. Staples, Attorney General, and Edwin B. Jones, Assistant Attorney General, for the plaintiff in error.

W. L. Devany, Jr., for the defendant in error.

BROWNING, J., delivered the opinion of the court.

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 requirements 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 $25.00 shall be paid to the board by each applicant for an examination, to be reduced to $15.00, 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.

1-4 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 the courts 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 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.

5 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.

6 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 rational 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 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 cave man scratched his crude drawings of the sabertoothed 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...