State v. Lawrence
| Decision Date | 15 June 1938 |
| Docket Number | 723. |
| Parties | STATE v. LAWRENCE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Forsyth County; F. D. Phillips, Judge.
N. L Lawrence was charged with practicing photography without a license. From a judgment of acquittal, the State appeals.
Reversed.
A provision in Photography Act that the State Board of Photographic Examiners could require proof of business record of applicant for license to practice photography as a prerequisite to examination did not make applicant's business record a test of applicant's qualifications for a license, but made his business record a proper subject to be considered in determining whether applicant qualified as to competency, ability, and integrity as required by the act. Code 1935, §§ 7007(10), 7007(11).
The defendant was indicted for violating the "Photography Act".
The important provisions of Chapter 155, Public Laws, 1935 "An Act to regulate and control the practice of photography". N.C.Code, 1935 (Michie), Sections 7007(1)-7007(29).
Section 7007(1) contains definitions.
Section 7007(2) provides for the establishment of a State Board of Photographic Examiners to be appointed by the Governor. Subsequent sections provide for its organization, hearings rules and public record of its proceedings.
Section 7007(10), "The board shall provide for the examination of applicants who desire to practice photography in this state * * * and issue certificates of registration and licenses to practice photography to anyone who shall qualify as to competency, ability and integrity." Provision is made for temporary certificates until the next examination.
Section 7007(11) provides that as a prerequisite to examination the Board shall have the power to require proofs as to "technical qualifications, business record and moral character of such applicant."
Section 7007(13) provides for applications upon forms prescribed by the Board and Examination fees. "All applicants must appear for examination at the time and place designated by the board and shall present such references and credentials as the board may require, and shall give satisfactory evidence as to their competency and fitness to conduct the practice of photography based on their technical knowledge, their business record and their moral character."
Section 7007 (17)-Licenses are not transferable and may not be issued to any person, firm or corporation doing business under an assumed or fictitious name.
Section 7007 (18)-Photographers who have been continuously engaged in the practice of photography and/or photo-finishing in North Carolina for one year next preceding the passage of the act are entitled to a license upon application without examination upon the payment of a specified fee.
Section 7007 (19) provides for annual license fees ($5 in the case of a photographer having an established place of business and $3 in the case of employees of established places of business).
Section 7007 (20) prohibits the sale or solicitation of orders for photographic products except by registered licensed photographers.
Section 7007 (23) provides for the revocation of licenses upon the following grounds: (a) Failure to pay annual license, with liberal provisions for reinstatement; (b) fraud or unethical practices, willful misrepresentation, or upon being found guilty under the laws of North Carolina of any crime involving moral turpitude. Provision is made for notice to accused photographer of charges, which charges must be filed in writing and under oath with the Board, representation by counsel, public hearing, attendance of witnesses and stenographic report of proceedings, which shall constitute a record of the Board, with provision for an appeal to the Superior Court.
Section 7007 (24)-Violation of the provisions of this chapter is made a misdemeanor and certain fine and imprisonment imposed.
Section 7007 (28)-Exemptions: (a) Newspaper photographers not otherwise selling photographs. (b) Photographs made for experimental purposes or for personal use and pleasure and not sold. (c) Photographs made by employees of State and Federal governments and their political subdivisions or by schools, colleges, universities or other state institutions making photographs for public use in connection therewith and not selling such photographs. (d) Medical practitioners, hospitals, or other institutions making photographs for clinical, surgical or medical purposes. (e) Motion picture photographers.
Section 7007 (29)-The act is made applicable only to cities and towns having a population of more than 2500. Photographers whose products retail at unit price of not more than ten cents are exempted.
The State contends that the special verdict establishes all necessary facts to support a verdict of guilty, to-wit, practice by the defendant of still commercial portrait photography and photography in other branches without applying for or securing a license and the selling of such products in Winston-Salem, a city of more than 75,000 persons, at unit prices in excess of ten cents per picture by the use of coupons.
The Special Verdict was as follows:
"In the Superior Court
January 10th Term, 1938.
The jury, for its verdict, finds: That N. L. Lawrence, a resident of Forsyth County, North Carolina, on or about April 16, 1937, at and in the County of Forsyth, North Carolina, and within the corporate limits of the City of Winston-Salem, a City at that time having a population in excess of 75,000 persons, did engage in the general business of portrait photography and did practice general portrait photography and photography in other branches; that is to say, did engage in the profession, occupation or avocation of taking and producing still portrait photographs for hire and profit and selling the same in the State of North Carolina, at unit prices in excess of ten cents per picture, without first having obtained a license to practice photography from the State Board of Photographic Examiners and without being duly licensed and registered by said State Board of Photographic Examiners to practice photography in the State of North Carolina, and without first having filed an application with the State Board for a license to practice photography and without having practiced photography or photo-finishing continuously in the State of North Carolina for one year next preceding the enactment of Chapter 155 of the Public Laws of 1935; that the defendant, in the practice of photography, from time to time has issued and sold coupons; that the defendant has paid the State and local license taxes required and authorized by the Revenue Act. If, upon the foregoing facts the Court be of the opinion that the defendant is guilty, the jury so finds; otherwise, it finds him not guilty. The Court being of the opinion that the defendant is not guilty, the jury so finds not guilty for its verdict. F. Donald Phillips, Judge Presiding."
The State excepted, assigned error to the judgment as signed and appealed to the Supreme Court.
Harry McMullan, Atty. Gen., and Manly, Hendren & Womble and W. P. Sandridge, all of Winston-Salem, amici curiæ for the State.
Parrish & Deal, of Winston-Salem, for appellee.
N.C.Code, 1935 (Michie), Section 4649, is as follows:
The sole question presented on this appeal: Is Chapter 155 of the Public Laws of 1935, N.C.Code, supra, Section 7007 (1)-(29)-"An Act to Regulate and Control the Practice of Photography" constitutional? We think so.
The defendant contends that this statute providing for the regulation and licensing of photographers in North Carolina is unconstitutional and void: In that it violates the Constitution of the United States, Fourteenth Amendment, Section 1, U.S.C.A.Const.Amend. 14, § 1, which provides: "* * * nor shall any State deprive any person of life, liberty, or property, without due process of law, etc." Also that it violates the following provisions of the Constitution of North Carolina: Article 1, 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, the enjoyment of the fruits of their own labor, and the pursuit of happiness." Article 1, 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 1, Sec. 29: "A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty." Article 1, Sec. 31: "Perpetuities and monopolies are contrary to the genius of a free state and ought not to be allowed." We cannot so hold.
In State v. Warren, 211 N.C. 75, 79, 189 S.E. 108, the Act was not a general State Act and was declared unconstitutional.
This Court in that case said (page 111): "The state can no doubt, in a state-wide act, make reasonable regulations in regard to the real estate business."
The following are some of the professions and occupations regulated in a similar manner by the Statutes of this State: Doctors, lawyers, accountants, contractors, pilots, pharmacists, osteopaths, trained nurses, chiropodists, veterinarians, dentists, architects, barbers, cosmetologists or beauticians, engineers, optometrists, chiropractics, embalmers, real estate brokers, salesmen, and midwives.
It goes without saying that...
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