State v. Harris

Citation6 S.E.2d 854,216 N.C. 746
Decision Date02 February 1940
Docket NumberNo. 146.,146.
CourtUnited States State Supreme Court of North Carolina
PartiesSTATE. v. HARRIS.

6 S.E.2d 854
216 N.C. 746

STATE.
v.
HARRIS.

No. 146.

Supreme Court of North Carolina.

Feb. 2, 1940.


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Appeal from Superior Court, Vance County; W. J. Bone, Judge.

J. P. Harris was convicted of engaging in the business of dry cleaning without having procured a license, and he appeals.

Reversed.

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

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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 condition-

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ed 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...

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