[Copyrighted Material Omitted]
This
prosecution was begun by a warrant in the Municipal Court in
the City of Henderson, whence, from a judgment of guilty, the
defendant appealed to the Superior Court of Vance County
where the case was heard before Judge Bone upon the original
warrant.
The
warrant charged the defendant with engaging in the business
of dry cleaning without first having procured a license so to
do, in violation of Chapter 30, Public Laws of 1937, as
amended by Chapter 337, Public Laws of 1939. The license
referred to in the warrant was not that required of dry
cleaners under the Revenue Act, but was a license authorized
to be issued by the State Dry Cleaners Commission, created by
Section 2 of the statute above cited. The indictment is under
Sections 5 and 7 of the Act, to which more specific reference
is made below.
On
the trial the defendant admitted that he was engaged in the
business defined in the statute, but denied that he was
guilty of any offense. The statute, he contends, is
unconstitutional and void in a number of particulars
discussed in the opinion, but chiefly because it interferes
with his right of choice and pursuit of one of the innocuous
ordinary callings of life in his endeavor to earn a
livelihood.
For
convenience in discussion we refer to the following
provisions of the law:
Among
the definitions in Section 1, we find the following:
"a.
'State Dry Cleaners Commission' means the State
agency created by this Act for the dry cleaning, pressing
and/or dyeing business.
"b.
'Cleaning and dyeing business' includes any place or
vehicle where the services of dry cleaning, wet cleaning as a
process incidental to dry cleaning, dyeing, spotting, and/or
finishing any fabric is rendered for hire, or is sold, resold
or offered for sale or resale; and also includes the
acceptance of any clothing or other fabric to be dry cleaned
dyed and/or pressed, and where said work is actually done and
performed by other parties than those accepting it.
"c.
'Pressing' means the pressing of clothes or other
fabric by whatever manner used; and shall include those
persons, associations of persons, firms or corporations who
accept clothes or other fabric for pressing, when the actual
pressing is done and performed by other parties.
"d.
'Person' means any person, firm, corporation or
association.
"e.
'Retail outlet' includes any establishment or vehicle
where dry cleaning, dyeing, and/or pressing service is sold,
or offered
for sale, directly to the consumer, but
where none of the processes of dry cleaning, dyeing and/or
pressing is actually performed by such retail outlets and
where the retail outlets are not owned or controlled by a
retail or wholesale processing establishment.
"f.
'Press shop' includes any dry cleaning, dyeing and/or
pressing establishment owning or having pressing equipment
for the purpose of pressing clothes or other fabrics by
whatever manner used, but where the actual process of dry
cleaning and/or dyeing is not performed on the premises but
is contracted out to a wholesale plant.
"g.
'Retail plant' includes any person, firm, corporation
or association operating a cleaning and/or dyeing
establishment performing dry cleaning, dyeing and pressing
for sale directly to the consumer."
The
Act proceeds to create, for the business thus defined, a
Commission to be known as the "State Dry Cleaners
Commission". The Commission consists of five members,
"three of whom shall have been engaged in the dry
cleaning, dyeing and/or pressing business in the State of
North Carolina for at least five years next preceding his
appointment, and two of whom shall not be connected with said
business but shall be from the public at large". Section
2. The members of the Commission are to receive $5 a day
while attending Commission meetings and necessary traveling
expenses. The Commission elects its Chairman and
Vice-Chairman, and adopts rules and by-laws for its
organization and proceeding and adopts and uses the seal. It
is further authorized and empowered to "incur any and
all expenses deemed necessary by it for the administration
and enforcement of this Act, and to appoint a secretary, who
need not be a member of the Commission, and such other
clerks, inspectors, and other assistants as it may deem
necessary for the administration and enforcement of this Act,
and fix their duties, compensation, and terms of service, as
well as the employment of such lawyers as may be approved by
the Attorneys General, all of which shall be paid out of the
funds collected by the Commission as provided in this
Act."
We
quote Section 3 in full:
"Sec.
3. The functions, duties, and powers of the 'State
Cleaners Commission' shall be as follows:
"(1)
To adopt and promulgate rules and regulations as may be
necessary to control and regulate the dry cleaning, dyeing
and/ or pressing business in the following
particulars:
"a.
Identification to the public of all persons, firms,
corporations or associations licensed by the Commission to
engage in said businesses, as well as their agents or
representatives.
"b.
Enforcement of existing fire, sanitation and labor laws where
applicable to the industry, and all other laws applicable to
the industry now on the statute books of North
Carolina.
"c.
Prohibit false or misleading statements, advertisements or
guarantees either in form or content.
"d.
Form of application required by Commission for license and
form of license to be issued by Commission.
"e.
Require examination of persons not entitled to have issued to
them a license as provided in this Act, such examination to
cover subjects deemed necessary to promote the public health,
safety and welfare of the people of the State of North
Carolina.
"(2)
To grant licenses to conduct the business of dry cleaning,
dyeing and/or pressing to persons, firms, corporations, or
associations in accordance with the provisions of this Act
and the rules and regulations of the Commission. This
Commission may decline to grant a license, or may suspend or
revoke a license already granted, after due notice and after
hearing, on the grounds of any violation of the provisions of
this Act or the rules and regulations promulgated by said
Commission, not in conflict with the provisions of this Act:
Provided, however, that any party accused shall have the
right to appeal from the decision of the Commission, in the
event of a refusal to grant or the suspension or revocation
of any license, to the Superior Court of the county in which
the place of business of the accused party is located. Such
appeal shall operate as a supersedeas with respect to the
decision or ruling of said Commission in the refusal to grant
or the revocation or suspension of such license: Provided
that, pending appeal, the accused party shall execute a bond
in the sum of five hundred dollars ($500.00) before the clerk
of the court in which the appeal is pending, the surety to be
approved by the clerk of said court and conditioned
not to violate any of the provisions of
this Act.
"(3)
To act, for the purpose of this Act, as a competent authority
in connection with the matters pertinent
thereto."
Section
5 of the Act provides as follows: "Sec. 5. No person,
firm, corporation or association shall engage in the business
of dry cleaning, dyeing and/or pressing, as herein defined,
within the State of North Carolina without first obtaining a
license therefor from the said Commission, which said license
shall be valid for a period of one year and no more, unless
sooner revoked or suspended by said Commission under the
provisions of this Act." Applicable to defendant's
business, as designated in this section, was $25 for license
as "retail plant".
Section
7 provides: "Except pending an appeal, as hereinbefore
provided, any person who shall engage in the business of dry
cleaning, dyeing and/or pressing, as herein defined, without
first having secured a license or certificate from said
Commission so to do, or who shall continue to do the business
of dry cleaning, dyeing and/or pressing after the suspension
or revocation of a license issued by the Commission, shall be
guilty of a misdemeanor under the laws of the State of North
Carolina, and upon conviction thereof shall be punished by a
fine of not less than ten dollars, nor exceeding one hundred
dollars, and each day during which this violation shall
continue shall be deemed a separate offense."
Section
8 reads as follows: "Licenses in this Act shall be
imposed as an additional State license fee for the privilege
of carrying on the business, exercising the privilege, or
doing the acts named herein, and nothing in this Act shall be
construed to relieve any person, firm, corporation, or
association of persons from the payment of the fee prescribed
under section five hereof."
The
provisions of the Constitution on which defendant relies are
reproduced for convenient reference:
Article
I, "Section 1. That we hold it to be self-evident that
all men are created equal; that they are endowed by their
Creator with certain inalienable rights; that among these are
life, liberty, and the enjoyment of the fruits of their own
labor, and the pursuit of happiness."
Article
I, "Sec. 17. No person ought to be taken, imprisoned, or
disseized of his freehold, liberties or privileges, or
outlawed or exiled, or in any manner deprived of his life,
liberty, or property but by the law of the land."
Article
I, "Sec. 29. A frequent recurrence to fundamental
principles is absolutely necessary to preserve the blessings
of liberty."
Article
I, "Sec. 31. Perpetuities and monopolies are contrary to
the genius of a free State, and ought not be
allowed."...
