State v. Williams

• Decision Date: 23 November 1960
• Docket Number: No. 74,74
• Citation: 253 N.C. 337,117 S.E.2d 444
• Parties: , 92 A.L.R.2d 513 STATE, v. Louise B. WILLIAMS.
• Court: North Carolina Supreme Court

Page 444

117 S.E.2d 444

253 N.C. 337, 92 A.L.R.2d 513

STATE, v. Louise B. WILLIAMS.

No. 74

Supreme Court of North Carolina.

Nov. 23, 1960

A. D. Ward, New Bern, for defendant, appellant.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Glenn L. Hooper, Jr., for State.

MOORE, Justice.

Defendant is indicted pursuant to the provisions of G.S. § 115-253. This section is a part of Article 31, Chapter 115, of the General Statutes of North Carolina, which provides for the regulation of business, trade and correspondence schools--private schools. The first seven sections of the Article deal, almost entirely, with the regulation of such schools located in North Carolina. G.S. § 115-253 requires persons soliciting students within the State for schools 'located within or without the State' to secure a license annually from the State Board of Education. The license fee is $5. When application is made for a license by a solicitor certain information must be furnished with the application. If the Board approves the instructional program and the solicitor, license will be issued. If license is issued to a solicitor for an out-of-state school, the solicitor shall execute and file a bond in each county in which students are solicited. Nonresident schools employing solicitors shall be responsible for the acts, representations and contracts made by their solicitors. 'Any person soliciting students for any such school without first having secured a license from the State Board of Education and without having executed the bond * * * shall be guilty of a misdemeanor * * *.' G.S. § 115-252 imposes the duty on out-of-state schools to see that their solicitors are licensed and bonded. G.S. § 115-254 provides that contracts, notes and evidences of debt obtained by unlicensed solicitors shall be null and void.

Allegro Bryant, a high school teacher, resident of Craven County, received through the mail a card addressed to box holder. The card had been placed in the mail by Citizens Training Service, Inc., a Virginia corporation, having its principal office and place of business in Danville, Virginia. It conducts a correspondence school for preparation for civil service careers--federal, state and municipal. Bryant mailed the card to the school indicating an interest in certain courses. She promptly received certain forms to be held by her until a canvasser called. On 16 January 1960 defendant contacted her and, as a consequence, she signed a contract for instruction designed to prepare her to take examinations for civil service employment as teacher, social worker and junior professional assistant. The fee for the course was $135. Bryant paid $20 in cash and signed a promissory note for $115, to be due 25 February 1960. The contract, according to its terms, was not to be complete until accepted at the business office in Danville. Bryant testified that defendant represented to her that a job was guaranteed. The written contract is to the contrary. Bryant received by mail a book containing 25 or more lessons. She completed and sent in only one assignment. She made no payment on the note. Defendant was not licensed or bonded under the provisions of G.S. § 115-253.

Defendant's testimony clearly states her position in this case: 'My plea of not guilty and my defense in this prosecution is based solely on the grounds that the provisions of G.S. § 115-253 are unconstitutional. If the provisions of this statute are constitutional, I am guilty of violating such provisions of the statute. Otherwise I am not.'

Defendant moved to set aside the verdict and for arrest of judgment on the ground that G.S. § 115-253 violates Article I, sections 1, 17 and 31 of the Constitution of North Carolina and Article I, section 8, clause 3 of the Constitution of the United States.

The primary purpose of Article 31, of which the challenged section is a part, is to control and regulate certain private schools--specifically business, trade and correspondence schools. The article is entitled, 'Business, Trade and Correspondence Schools.' As an incident to such control, G.S. § 115-253 undertakes to regulate solicitors and canvassers for such schools. It seems clear that the provision for regulation of solicitors is to enable the State Board of Education to indirectly extend its control and supervision to correspondence schools located beyond the borders of the state that solicit and instruct students in North Carolina.

Article 31 assigns the following reasons for imposing regulations on the specified schools: '* * * to protect the public welfare by having the licensed business, trade, or correspondence schools maintain proper school quarters, equipment, and teaching staff and to have the school carry out its advertised promises and contracts made with its students and patrons.' G.S. § 115-249. In short, it is the intent of the enactment that the State Board of Education pass upon the adequacy of the equipment, curricula and instructional personnel of the schools and protect students from fraud and breach of contract on the part of the schools and their agents and representatives.

The Constitution of North Carolina provides that 'schools and means of education shall forever be encouraged.' Art. IX, § 1. Further, the State Board of Education shall have the power and duty 'generally to supervise and administer the free public school system of the State and make all needful rules and regulations in relation thereto.' (Emphasis added) Art. IX, § 9. The constitutional authority of the State Board of Education to make regulations for and supervise and administer schools is confined to public schools and activities substantially affecting public schools and the public school system. It may have and exert only such authority in the supervision and control of private schools and their agents and representatives as is conferred by the General Assembly in the proper exercise of the police power of the State.

'While the Legislature, under the police power, may regulate education in many respects in private schools, the exercise of such power of regulation must not be arbitrary, and must be limited to the preservation of the public safety, the public health, or the public morals.' 47 Am.Jur., Schools, § 221, p. 459. Columbia Trust Co. v. Lincoln Institute, 1910, 138 Ky. 804, 129 S.W. 113, 115, 29 L.R.A.,N.S., 53, deals with a state statute making the right to establish a private industrial school in a county depend upon a vote of the electors of the county. There it is said: '* * * (U)nless it can be shown that the establishment of such an institution as the one under consideration is in some way inimical to the public safety, the public health, or the public morals, the act which forbids its operation is an exercise of arbitrary power. In other words, the act in question must find its justification in the police power of the State, or it must be declared invalid.' In another case it has been declared: 'The capacity to impart instruction to others is given by the Almighty for beneficent purposes and its use may not be forbidden or interfered with by government--certainly not, unless such instruction is, in its nature, harmful to the public morals or imperils the public safety.' Farrington v. Tokushige, 9 Cir., 1926, 11 F.2d 710, 713, quoting Harlan, J., in Berea College v. Kentucky, 211 U.S. 45, 29 S.Ct. 33, 53 L.Ed. 81. Private schools have vested property and occupational rights which may not be arbitrarily infringed. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 573, 69 L.Ed. 1070, 39 A.L.R. 468; Farrington v. Tokushige, supra.

The State has the power and authority to establish minimum standards for, and to regulate in a reasonable manner, private schools giving instruction to children of compulsory school age. This is necessarily true because such schools affect the public school system. In this connection it has authority, among others, 'to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught that is manifestly inimical to the public welfare.' Pierce v. Society of Sisters, supra.

The courts stress the proposition that the regulation of private schools under the police power of the state must be reasonable and in response to a manifest present public need or emergency.

The Court of Appeals of Maryland, in Schneider v. Pullen, 1951, 198 Md. 64, 81 A.2d 226, 229 upheld the constitutionality of a statute providing for the regulation of certain private schools, including trade schools. The case involved a barber school. It is suggested that the regulatory act was necessary 'because many mushroom schools of various characters sprang up in order to take advantage of government subsidies given to veterans of World War II.' The New York Supreme Court held constitutional a statute which provided that private schools be licensed, and that no license should issue if it appeared that the instruction to be given included the doctrine that organized government should be overthrown by force, violence or unlawful means. People v. American Socialist Society, 1922, 202 App.Div. 640, 195 N.Y.S. 801, 806. The Court declared: 'There can be little question but that it is within the power of the Legislature to enact statutes for the self-preservation of the state, and to prevent the teaching of doctrine advocating the destruction of the state by force * * * (I)t seems to us that the act in question is well within the proper exercise of the police power of the state, and that for the purpose of protecting the peace, public safety, and security of the citizens of the state the Legislature had the right to enact the statute.'

On the other hand, the courts have stricken down as unconstitutional many legislative enactments...