State v. Dixon

• Citation: 1 S.E.2d 521,215 N.C. 161
• Decision Date: 01 March 1939
• Docket Number: No. 505.,505.
• Court: United States State Supreme Court of North Carolina
• Parties: STATE. v. DIXON.

1 S.E.2d 521
215 N.C. 161

STATE.
v.
DIXON.

No. 505.

Supreme Court of North Carolina.

March 1, 1939.

[1 S.E.2d 521]

DEVIN, SCHENCK, and SEA WELL, JJ., dissenting.

Appeal from Superior Court, Mecklenburg County; W. H. S. Burgwyn, Special Judge.

W. J. Dixon was found guilty of violating the Real Estate License Act, and on the granting of defendant's motion in arrest of judgment on ground that the Real Estate License Act was unconstitutional, the State appeals.

Judgment affirmed.

[1 S.E.2d 522]

Defendant, by warrant, was charged with the violation of the N. C. Real Estate License Act (Chapter 292, Public Laws of N.C.1937). From a conviction in the Recorder's Court of the City of Charlotte, he appealed to the Superior Court. Upon the return of the jury therein with a verdict of guilty, defendant moved in arrest of judgment on the ground that said N. C. Real Estate License Act is unconstitutional. The judge below allowed the motion and entered an order arresting judgment to which the State excepted, assigned error and appealed to the Supreme Court. The State is permitted to appeal "upon arrest of judgment." C.S. § 4649(4).

Harry M. McMullan, Atty. Gen, and T. W. Bruton and R. H. Wettach, Asst. Attys. Gen, for the State.

Clayton L. Burwell, of Charlotte, Amicus Curiae.

H. L. Taylor, of Charlotte, for appellee.

CLARKSON, Justice.

The purpose of Chapter 292, Public Laws 1937, is indicated by the title, "An Act To Define Real Estate Brokers And Salesmen; To Provide For The Regulation, Supervision And Licensing Thereof; To Create A Real Estate Commission, And Prescribing The Powers And Duties Thereof; To Provide For The Enforcement Of Said Act And Penalties For The Violation Thereof." That the regulation of the trade sought was intended to be both extensive and intensive is apparent from Section 9 of the Act, in which any one of eight types of misconduct, each defined in broad terms, is made the basis for the revocation or suspension of a real estate broker's or salesman's license. The limit to which the Act goes in an effort to control the conduct of persons engaged in trading in real estate is shown by the following statement of purpose, taken from Section 17 of the Act: "It is the purpose of this Act to provide for the regulation and discipline of real estate brokers and salesmen doing business within the State of North Carolina to the end that the interests and welfare of the people of said State shall be safeguarded by such regulation, and the fees herein charged shall be used by the commission for the enforcement of the provisions of this Act, and shall be in addition to any and all other privilege taxes, license fees or levies, whether made by the State of North Carolina or any county, city or town, when the same are made under authority of law." In Section 17% sixty-four counties out of the one hundred in the State are specifically exempted from the Act.

First. Is this Act constitutional? We think not.

The Constitution of North Carolina provides: "The General Assembly shall not pass any local, private, or special act or resolution * * * regulating labor, trade, mining, or manufacturing. * * * Any local, private or special act or resolution passed in violation of the provisions of this section shall be void." Art. 2, section 29 (italics ours).

The leading legal definition of "trade" is that of Justice Bradley in May v. Sloan, 101 U.S. 231, 237, 25 L.Ed. 797, as follows: "The word 'trade, ' in its broadest signification, includes not only the business of exchanging commodities by barter, but the business of buying and selling for money, or commerce and traffic generally." This is cited as the basic definition in 3 Bouvier's Law Dictionary, Rawle's Third Revision, p. 3290; Black's Law Dictionary, 3rd ed, p. 1744; and Bal-lentine's Law Dictionary, p. 1291. The same definition has been cited with approval by this Court in State v. Worth, 116 N.C. 1007, 1010, 21 S.E. 204, and Lewis v. Murray, 177 N.C. 17, 19, 97 S.E. 750, and a similar definition was followed by Douglas, J, in State v. Hunt, 129 N.C. 686, at page 690, 40 S.E. 216, 85 Am.St.Rep. 758. In State v. Worth, supra, it was said, in part: "The word 'trade' is * * * interpreted as comprehending not only all who are engaged in buying and selling merchandise, but all whose occupation or business it is to manufacture and sell the products of their plants. It includes in this sense any employment or business embarked in for gain or profit." [116 N.C. 1007, 21 S.E. 205.] The last sentence of this definition is quoted with approval by Allen, J, writing for the Court, in Smith v. Wilkins, 164 N.C. 135, 136, 140, 80 S.E. 168. When so defined, we think that real estate brokers and salesmen, as defined by Section 2 of the License Act here considered, are engaged in "trade" within the meaning of Art. 2, section 29, N.C.Constitution. As was said in Finnegan v. Noerenberg, 52 Minn. 239, 245, 53 N.W. 1150, 1151, 18 L.R.A. 778, 38 Am.St.Rep. 552: "Giving a reasonably liberal meaning to the word 'trade' in the act, it would include the buying and selling of real estate * * *." Accordingly, real estate brokers and salesmen being engaged

[1 S.E.2d 523]

in "trade", if the present Act is a local, private, or special act, it is void.

In the case of In re Harris, 183 N.C. 633, 637, 112 S.E. 425, 427, Hoke, J, for the Court, declared: "We are of opinion, as stated, and so hold, that on the case we have before us [a recorders' court act exempting forty-four counties], where the Legislature, in the plain endeavor to comply with the constitutional limitation, has passed an act establishing a general statute for the establishment of these courts, applicable to more than one-half the counties in the state, the principle of the New York decsion affords a better and wiser rule of interpretation and must be allowed as controlling on the validity of the present law." The New York rule referred to was there quoted from People ex rel. v. Newburgh & S. Plank Road Co. et al., 86 N.Y. 1, 7, as follows: "A local act is one operating only in a limited territory or specified locality. It could not be said, with propriety, that a territory comprising nearly the whole state was merely a place or locality. An act operating upon persons or property in a single city or county, or in two or three counties, would be local. But how far must its operation be extended before it ceases to be local? To determine this no definite rule can be laid down, but each case must be determined upon its own circumstances." Tested by the rule of the Harris case, it is apparent that the present Act applies to only a "limited territory" (the area occupied by only one-third of the counties) and to only "specified localities (the geographical limits being limited to that encompassed by the boundaries of only thirty-six counties). The Harris case indicated the proper test, not of a public law, but of a "general" public law. That test, there applied, pronounced a law which exempted forty-four out of one hundred counties to be a valid, "general" law; that same test, here applied, pronounces a law which exempted sixty-four out of one hundred counties to be invalid as not constituting a "general" law. 25 R.C.L., "Statutes", Sees. 65 and 66; State v. Johnson, 170 N.C. 685, 692, 86 S.E. 788. The Harris case, supra, properly recognized that as to the particular types of legislation described in Art. 2, Section 29, of our Constitution, all legislative enactments are to be classified in one of the two classes: (1) "Local, private, or special" acts which are "void", or (2) "general laws" which the General Assembly has "power to pass". The Harris case is like wise authority for looking beyond the mere form of an act to determine whether it is in fact a public, general law; this Court will look beyond such surface superficialities when there has been what Hoke, J. (In re Harris, supra), describes as "a palpable attempt to evade the constitutional restriction." Since such an Act as the present one can not, accurately, be said to be generally and usually applicable throughout the area comprising the State, it necessarily follows that it falls within the class described by the words "local, private or special" acts. The plain, expressed requirement of our Constitution is the laws "regulating * * * trade" shall be "general laws"; the present Act contravenes this constitutional mandate, and is, accordingly, "void". This Court would be remiss in discharging its proper function if it did not pronounce unconstitutional those Acts of the General Assembly which plainly violate the basic, organic law of the Constitution; if it fails in this primary duty the fundamental guaranties of the Constitution become but vain delusions and that bedrock charter of rights and duties rapidly disintegrates into, to quote Macaulay, "A thing to be appealed to by everybody and understood by everybody in the sense which: suits him best."

Second. Is the N. C. Real Estate License Act, which applies to only thirty-six counties in the State, invalid as conflicting with the general, State-wide policy of the current Revenue Act? We think that the Act fails in this respect also.

Chapter 127, Section 109, Public Laws of 1937, provides that real estate brokers and salesmen "shall apply for and obtain from the Commissioner of Revenue a state-wide license for the privilege of engaging in such business or profession." This same section of the Revenue Act regulates the license-taxes required of attorneys, physicians, dentists, oculists, engineers, and the members of a number of other professions or trades. Chapter 292, Public Laws of 1937, attempts to impose a further license tax or real estate brokers and salesmen, declaring that the practice of the profession or trade without such additional license shall constitute a misdemeanor. It is this latter Act which is here declared invalid.

The decision of this Court in State v. Warren, 211 N.C. 75, 189 S.E. 108, narrowly limits the range of...