State v. Warren
Decision Date | 06 January 1937 |
Docket Number | 650. |
Citation | 189 S.E. 108,211 N.C. 75 |
Parties | STATE v. WARREN. |
Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; W. C. Harris, Judge.
E. D Warren was convicted of violating statute licensing real estate brokers and real estate salesmen, and he appeals.
Reversed.
241 Public-Local Laws of 1927, to wit: "An Act to define regulate, and license real estate brokers and real estate salesmen; to create a state real estate commission, and to provide a penalty for a violation of the provisions hereof," applicable to certain designated counties-8 in number. The defendant contends that the act is unconstitutional.
General Assembly can confer power on municipalities to tax trades professions, and the like.
The defendant was found guilty and sentenced for violating chapter
F. F. Myrick, of Greensboro, for appellant.
A. A. F. Seawell, Atty. Gen., and Hoyle & Hoyle, of Greensboro, amici curiæ, for the State.
The sole question involved in this appeal: Is the act in controversy unconstitutional? We think so.
The Constitution of North Carolina, art. 1, § 7, is as follows: "No man or set of men are entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services." Article 1, § 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." Section 31: "Perpetuities and monopolies are contrary to the genius of a free state and ought not be allowed." Article 5, § 3: Taxation shall be by uniform rule and ad valorem, with certain exemptions. Fourteenth Amendment to the Constitution of the United States.
In Public Laws 1935, chapter 371, we find under License Taxes, section 100, p. 450, the following: "Taxes in this article or schedule shall be imposed as a State License Tax for the privilege of carrying on the business, exercising the privilege, or doing the act named, and nothing in this act shall be construed to relieve any person, firm, or corporation from the payment of the tax prescribed in this article or schedule."
Section 109, in part: "Every person, whether acting as an individual, as a member of a partnership, or as an officer and/or agent of a corporation, who is engaged in the business of selling or offering for sale, buying or offering to buy, negotiating the purchase, sale, or exchange of real estate, or who is engaged in the business of leasing or offering to lease, renting or offering to rent, or of collecting any rents as agent for another for compensation, or who is engaged in the business of soliciting and/or negotiating loans on real estate as agent for another for a commission, brokerage and/or other compensation, shall apply for and obtain from the Commissioner of Revenue a State-wide license for the privilege of engaging in such business or profession, or the doing of the act named, and shall pay for such license twenty-five dollars ($25.00)."
The above is a state-wide act, and a state-wide license is issued to the real estate salesmen, applicable to the whole State. The act in controversy, chapter 241, Public-Local Laws of 1927, § 1, in part is as follows: The contents of the act: Section 3, Creation of commission, details of same; section 4, Qualifications for license; section 5, Application for license; section 6, Procedure when license is refused applicant; section 7, Details relating to license; section 8, Suspension or revocation of license for causes enumerated; section 9, Provision for hearing before application is refused or license suspended or revoked; section 10, Nonresident brokers and salesmen; section 11, Publication of list of licenses; section 12, Penalties; section 13, Saving clause; section 14, Repealing clause; section 15, Interpretation of act; section 16, Date effective; section 17: "This act shall apply only to the counties of Buncombe, Durham, Forsyth, Guilford, Henderson, Lee, Rowan and Wake." Some counties have been withdrawn from the act and some added. It is operative in only a few counties of the State.
In section 3 is the following:
Section 4: "A license shall be granted only to persons who bear a good reputation for honesty, truthfulness and fair dealing, and are competent to transact the business of a real estate broker or a real estate salesman in such a manner as to safeguard the interests of the public." The act provides for suspension or revocation of license on its own motion or upon written complaint for 10 reasons-setting them forth.
It has long been settled in this state that under the police power of the state to protect the health, comfort, safety, and welfare of the people general acts have been passed and held constitutional, relating to professions and trades that require skill, learning, and training, such as attorneys at law, physicians, dentists, surgeons, accountants, osteopaths, chiropractors, opticians, cosmetologists, barbers, plumbers, etc. Roach v. Durham, 204 N.C. 587, 169 S.E. 149; Allen v. Carr, 210 N.C. 513, 187 S.E. 809.
If the present act in controversy was applicable to the whole state, we are not called upon here to decide the constitutionality of same.
In Rawles v. Jenkins, 212 Ky. 287, at page 292, 279 S.W. 350, 352, it is said: :
On the other hand, general state acts of this nature have been held constitutional. In Bratton v. Chandler, 260 U.S. 110, 43 S.Ct. 43, 67 L.Ed. 157, a state-wide act of Tennessee is upheld. Roman v. Lobe, 243 N.Y. 51, 152 N.E. 461, 50 A.L.R. 1329 et seq.
In this state certain public-local acts have been held constitutional, as in State v. Moore, 104 N.C. 714 10 S.E. 143, 17 Am.St.Rep. 696; State v. Blake, 157 N.C. 608, 72 S.E. 1080, and cases cited therein, but these matters were local in their nature. The sale of real estate is a business applicable to the whole State, and the State licenses those engaged in the business and issues them a "state-wide license." The state can no doubt, in a state-wide act, make reasonable regulations in regard to the real estate business. Those desiring real estate licenses to do business have to obtain same from the state, and in addition those living in these counties, under ...
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