State v. Cromwell
| Decision Date | 05 June 1943 |
| Docket Number | Cr. No. 184. |
| Parties | STATE v. CROMWELL. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Chapter 188, Session Laws 1939, an act defining and regulating the practice of professional photography, creating a board to issue licenses to such applicants to practice as qualify on examination as to competency, ability and integrity, and making the practice without a license a misdemeanor, is examined; and it is held for reasons stated in the opinion, that said chapter 188 is not a proper exercise of the police power in that it unreasonably curtails the right to engage in the business of photography and, on that account, is unconstitutional and void as violating sections 1 and 13 of the Constitution of the state of North Dakota.
2. Due process of law as that term is used in section 13 of the Constitution of the state of North Dakota, providing that "no person shall *** be deprived of life, liberty or property without due process of law" means the law of the land; that which secures the individual from the arbitrary exercise of the powers of government unrestrained by the established principles of private rights and distributive justice.
3. The police power is that power inherent in every sovereignty to govern men and things under which the legislature may within constitutional limitations not only prohibit all things hurtful to the comfort, safety, and welfare of society, but prescribe regulations to promote the public health, morals and safety, and add to the general public convenience, prosperity and welfare.
4. The police power extends to every regulation of any business reasonably required and appropriate for the public protection and is limited only by the requirement that the regulation shall not be unreasonably arbitrary or capricious and that the means of regulation selected shall have a real or substantial relation to the object sought to be attained.
5. Whether and in what manner a business shall be regulated are matters of policy for the legislative department of government to determine. But, whether a regulatory statute encroaches upon personal or property rights guaranteed by the constitution are matters for the judicial department to determine.
C L. Young, of Bismarck, for appellant.
Alvin C. Strutz, Atty. Gen., George S. Register Sp. Asst. Atty. Gen., and Floyd B. Sperry, State's Atty of Golden Valley, for respondent.
The state's attorney of Mercer County filed an Information in the district court of that county charging the defendant Cromwell with the offense of attempting to practice photography without a license, contrary to the provisions of chapter 188, Session Laws 1939. This Information charged "*** said defendant then being in the act of taking and producing, for compensation, through the sale thereof, images on sensitized material by the action of light, and with the use of a camera, said defendant having in his possession at said time, a camera with said sensitized materials, which said defendant was then operating for said purpose, and with which the defendant had taken three exposures, the defendant not being licensed pursuant to said Act, at said time, as required by the provisions thereof ***."
Appellant was duly arraigned. He demurred to the Information on the ground that the statute in question was unconstitutional and therefore void. The court overruled the demurrer. Thereupon appellant entered a plea of guilty. He at once moved the court in arrest of judgment on the ground that the facts stated in the Information did not constitute a public offense for the reason that chapter 188, Session Laws 1939, the act on which the charge was predicated, was unconstitutional and void in that it violated section 1 of the Fourteenth Amendment to the Constitution of the United States and sections 1, 13 and 20 of the Constitution of the state of North Dakota. The court denied the motion in arrest and pronounced judgment that appellant be fined and imprisoned pursuant to the penalty provision of said chapter 188. Judgment was entered accordingly and appellant perfected the instant appeal from the order denying his motion in arrest and from the judgment of conviction.
Chapter 188, Session Laws 1939 is entitled: "An act to create a State board of photographic examiners and to regulate the practice of professional photography and to provide for licensing and registration of persons engaged in the practice of professional photography and to protect the public from fraud practiced by unscrupulous and irresponsible persons through misrepresentation and other unconscionable artifices and the obtaining of the possession of property without returning value therefor and for the protection of the public health and safety; providing for the enforcement of the provision of this act and for the punishment for violation thereof."
The act consists of fifteen sections. It first defines the practice of professional photography as "the profession or occupation of production for compensation of images on sensitized materials by the action of light, and with the use of a camera; development and fixation of the latent image to render same visible and permanent, and/or the subsequent reproduction or transfer of such image, either negative or positive, upon other sensitized material by the aid of light and chemical action." Section 1. It then specifies the exceptions to the application of the act and the individuals exempted from its operation. It creates a Board of Examiners, consisting of five members to be appointed by the Governor, all of whom must be photographers who have been engaged in the business in the state for not less than four consecutive years. Section 3. It provides that the board shall have authority to examine applicants who desire to practice photography within the state and to issue certificates of registration and license to practice photography to such as qualify as to competence, ability and integrity. In giving examinations "the board may take testimony, under oath *** as to technical qualifications or the business record of the applicant, and the board shall grant or refuse a license to practice to the applicant in accordance with the provisions of section 8 hereof." Section 5. Section 8 provides:
If the applicant successfully passes the examination he shall be registered by the board as a qualified photographer and receive a license authorizing him to practice photography. Such license shall not be transferable. Section 10 provides for the payment of annual fees by those licensed. Section 11 provides: "The board (after hearing) shall have power to revoke the license of any photographer who, in the opinion of the board, is guilty of fraudulent practices, or of willful misrepresentations, or for professional inactivity within the State for a period of one (1) year, unless given further time by the board, or who is convicted of a crime involving moral turpitude. ***"
The act further provides that a person shall be regarded as a practicing photographer who is a manager, proprietor or conductor of a place in which photographs are made and offered for sale or who is an employee therein within the meaning of the act and penalizes as for a misdemeanor any individual, copartnership, association or corporation engaged or attempting to engage in the practice of professional photography or acting in the capacity of a professional photographer either as manager, proprietor or conductor of a photographic establishment or an employee therein within the meaning of the act without first having complied with its provisions or whose license shall have been revoked or suspended or who shall violate any provisions of the act, and fixes the penalty of fine or imprisonment or both. In short, the act requires that those who would engage in the business of photography must procure a license or, failing to do so be subject to prosecution as for a misdemeanor; such license to be granted only after an examination by the board created by the act touching the competence and fitness of the applicant to practice photography based on technical knowledge and business integrity.
Appellant contended in the lower court, as he now does here in support of his appeal, that the legislative assembly has no constitutional power to exclude from the practice of photography for profit those persons who do not submit to an examination by the state board of photographic examiners and otherwise comply with the provisions of the act. In that behalf he contends that the business of photography is one of the ordinary occupations of life and that the right of every citizen regardless of educational or other personal qualifications to engage in such an occupation is guaranteed to him by section 1 of the Constitution of North Dakota which declares that all men are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty and acquiring, possessing and protecting property and reputation and pursuing and obtaining safety and happiness; and by section 13 of the Constitution of North Dakota which provides that no person shall be deprived of life, liberty or...
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