Roller v. Allen

• Decision Date: 27 February 1957
• Docket Number: No. 451,451
• Citation: 245 N.C. 516,96 S.E.2d 851
• Court: North Carolina Supreme Court
• Parties: Frank ROLLER v. David G. ALLEN, George W. Carter, O. A. Ritch, Frank R. Smith, Ervin R. Bean and F. E. Wallace, Jr.

Page 851

96 S.E.2d 851

245 N.C. 516

Frank ROLLER v. David G. ALLEN, George W. Carter, O. A. Ritch, Frank R Smith, Ervin R. Bean and F. E. Wallace, Jr.

No. 451

Supreme Court of North Carolina.

Feb. 27, 1957

Page & Page, by Kohn T. Page, Jr., Rockingham, for plaintiff, appellant.

Fletcher & Lake, by I. Beverly Lake, Raleigh, for defendants, appellees.

HIGGINS, Justice.

The parties concede that if Chapter 87, Article 3, General Statutes is a valid exercise of legislative power, the judgment below should be affirmed. On the other hand, they concede that if the Act is in violation of plaintiff's constitutional rights, the judgment should be reversed. Counsel have confined the discussion solely to the constitutional question involved.

Plaintiff does not contend the North Carolina Licensing Board for Tile Contractors acted arbitrarily in refusing to issue him a license to engage in tile, marble, and terrazzo contracting. He does contend, however, that the Constitution of North Carolina denies to the General Assembly the power to enact legislation requiring the license.

In summary, Chapter 87, Article 3, provides: The North Carolina Licensing Board for Tile Contractors shall be composed of five members, each of whom shall have had at least five years experience in tile contracting. The Act requires a license from 'any person, firm, or corporation who for profit, undertakes to lay, set, or install ceramic tile, marble, or terrazzo floors or walls in buildings for private or public use.' The Board is authorized to make rules to govern its proceedings and for the examination of applicants for license. The applicant must have had at least two years experience or its equivalent as a tile, marble, or terrazzo student or mechanic, possessing the knowledge to specify the proper kind of such materials and the ability to install the same in accordance with specifications and blueprints. All persons actively engaged in tile contracting on the effective date of the Act are entitled to license without examination. The Board is given power to suspend or revoke license (among other causes) for incompetency or inefficiency in carrying on the business of tile contracting. Any person not licensed who engages in tile contracting and any architect, engineer, or contractor who receives or considers a bid from an unlicensed contractor, shall be guilty of a misdemeanor and fined not less than $200, or imprisoned not less than two months, or both fined and imprisoned, in the discretion of the court. Each applicant must pay $25 to take the examination and $50 for each yearly renewal of license. Exempt from the provisions are all contracts in which the total cost of materials and labor does not exceed $150; all contracts in State colleges, hospitals, and other State buildings.

The plaintiff attempted, but failed, to pass the examination given by the licensing board. The evidence of both parties, however, discloses that he has engaged to some extent in tile contracting without a license. The evidence indicates the licensing board has made no attempt to have him prosecuted under the penal provisions of the Act. If indicted, he could plead as a defense the unconstitutionality of the licensing Act. Inasmuch as he has not been indicted, that method of raising the question is not open to him. Undoubtedly, it is the well established general rule that the constitutionaliy of an Act cannot be challenged in a suit to enjoin its enforcement. Jarrell v. Snow, 225 N.C. 430, 35 S.E.2d 273; Scott v. Smith, 121 N.C. 94, 28 S.E. 64. However, the exception to the rule is as well established as the rule itself. Clinard v. City of Winston-Salem, 217 N.C. 119, 6 S.E.2d 867, 126 A.L.R. 634. An Act will be declared unconstitutional and its enforcement will be enjoined when it clearly appears either that property or fundamental human rights are denied in violation of constitutional guarantees. Loose-Wiles Biscuit Co. v. Town of Sanford, 200 N.C. 467, 157 S.E. 432; Dixie Poster Advertising Co. v. City of Asheville, 189 N.C. 737, 128 S.E. 149. The right to work and to earn a livelihood is a property right that cannot be taken away except under the police power of the State in the paramount public interest for reasons of health, safety, morals, or public welfare. Dixie Poster Advertising Co. v. City of Asheville, supra. 'The right to conduct a lawful business or to earn a livelihood is regarded as fundamental.' McCormick v. Proctor, 217 N.C. 23, 6 S.E.2d 870, 876; State v. Harris, 216 N.C. 746, 6 S.E.2d 854, 128 A.L.R. 658; 19 Am.Jur., 144.

An additional ground upon which the plaintiff claims the right to challenge the validity of the licensing Act by injunction is the fact, as he alleges, that architects, engineers, and contractors refuse to receive or consider his bids because they fear prosecution. In answer to plaintiff's allegation to that effect, the defendants admit their purpose to enforce the Act.

The evidence discloses that at least one contractor had plenty of work for plaintiff but refuses to consider his bids solely because he is not licensed. We hold, therefore, that this case falls within the exception to the general rule. The constitutionality of the Act is challenged in this proceeding.

The evidence of both parties consisted of ex parte affidavits. The plaintiff presented affidavits from engineers, architects, and building contractors who stated in substance that they are familiar with the uses and installation of tile, marble, and terrazzo as building materials and that the installation is simple, easy to learn, and requires no special skill; that manufacturers of these materials describe their purposes and uses in catalogues and other advertising so that the selection of the proper materials for different uses is simple and easy. Some of the affiants stated that the plaintiff had worked for them and that his work was especially well done and entirely satisfactory.

The defendants offered affidavits of two members and the executive secretary of the licensing board and others, among them engineers, architects, and contractors, to the effect that the selection and installaion of proper tile, marble, and terrazzo for the various uses is a highly technical and complicated business and requires special and unusual skill. The executive secretary of the licensing board, however, stated: 'The United States Department of Commerce has published various pamphlets concerning minimum specifications and requirements for the setting and installing of ceramic tiles. The Tile Council of America, which is an association formed by the manufacturers of ceramic tile, have constantly engineered and developed books of instruction to assure proper installation of these products.'

One of the defendants' affidavits from a contractor disclosed that the plaintiff had been discharged because his work was unsatisfactory.

While there is disagreement as to how simple or how complicated the business of tile contracting is, there is, however, general agreement that the installation of title and marble consists of the following steps: A metal mesh lath is nailed to the wall and covered with a plastic mixture of cement, lime, and sand about one-fourth-inch thick. This mixture is permitted to harden. Another like mixture is applied and while it is in the plastic state the tile or marble blocks are pressed into place, beginning at the bottom of the space to be covered, and the seams are then beveled. Tile and marble are wall materials that are non load-bearing. That is, they do not support any other part of the structure. Terrazzo (basically a floor material) is a built-up type of flooring consisting of mixed cement, sand, and lime into which marble chips are pressed when the mixture is plastic. After it hardens, a buffing and polishing machine is run over it until the surface is smooth and even. The installation of terrazzo is usually upon a subfloor of concrete or some other solid base prepared by the general building contractor.

Ceramics as building and surfacing materials have been manufactured and used for more than 4,000 years. The following is quoted from a United States Government publication, entitled 'Earthen Floor & Wall Tiles:'

'Floor and wall tiles, together with other products of fired clay, were produced in a very early period of the industrial history of mankind, a fact probably accounted for by the widespread occurrence of the raw materials and the comparative simplicity of manfacturing methods. Fired clay objects are usually among the articles discovered by archaeologists in the ruins of ancient civilizations, and there is ample evidence that the early builders in the Nile Valley and the Tigris-Euphrates Basin, as well as in other areas, were familiar with the superior qualities of fired clay as a medium of surface covering and used it extensively in their work. The famous doorway of blue glazed tile found in the Step Pyramid and now in a Berlin museum, the tile facing of the Istar Gate and the decorations of the Processional Street of Babylon, the famed Archers and Lions friezes from the palace of Darius at Susa--these and many other examples attest the antiquity of ceramic art and the technical competence of the ancient ceramists.

'The art of tile production in Europe was advanced greatly by the Persians, and it is to Saracenic Persia that the world largely owes the preservation and development of the art during the Medieval and Renaissance periods. It is said that the course of Saracen conquests can almost be traced by the glazed and decorated wall tiling of their buildings, for many of the tiles produced during those periods still adorn the ancient mosques and shrines of Bagdad and Damascus.'

From the evidence offered, the trial court found as a fact that the examining board was justified in finding from the written examination the plaintiff did not possess the qualifications required by the licensing Act and did not pass the examination....