Sullivan v. DeCerb

• Decision Date: 26 October 1945
• Citation: 23 So.2d 571,156 Fla. 496
• Parties: SULLIVAN, Sheriff v. DeCERB.
• Court: Florida Supreme Court

23 So.2d 571

156 Fla. 496

SULLIVAN, Sheriff v. DeCERB.

Florida Supreme Court

October 26, 1945

Rehearing Denied Nov. 16, 1945.

Appeal from Circuit Court, Dade County; George E. Holt judge.

Milam McIlvaine & Milam, of Jacksonville, for appellant.

Loftin Anderson, Scott, McCarthy & Preston and Tyrus A. Norwood all of Miami, for appellee.

CHAPMAN, Chief Justice.

A warrant issued by a Justice of the Peace of Dade County, Florida, charged the appellee, John Charles DeCerb, with the violation of Chapter 478,Fla.Stats.1941, F.S.A., being a codification of Chapter 19317, Laws of Florida, Acts of 1939.The purpose of the Act was to regulate and control the practice of photography in the State of Florida, largely upon the theory that it was such a business as was connected with the public interest and was subject to regulation and control under the police power of the Constitution.

Section 478.01supra, defines photography and the practice thereof.Section 478.02 made it unlawful for a person to sell, offer for sale, or solicit orders for any product of photography unless the person was duly registered or the employee of such a registered person.Section 478.03, F.S.A., requires nonresident photographers to take an examination prior to transacting business in the State of Florida.Section 478.05, F.S.A., exempts enumerated persons from the terms of the Act.

Section 478.06, F.S.A., creates the State Board of Photographic Examiners consisting of five members to be appointed by the Governor and each residing in Florida.Each member shall have had at least five years' experience as a photographer.Section 478.07 authorizes the Board to promulgate, adopt and enforce such rules, orders and regulations as are necessary for the enforcement of the several provisions of the Act.

Section 478.10, F.S.A., authorizes the Board to hold examination and investigate the qualifications of all applicants desiring to practice photography in the State of Florida.It has the power to charge and collect fees of applicants desiring to take the examination.If the Board as a result of the examination is satisfied that examinees are qualified, then a certificate of registration and license to practice photography are issued by the Board.Section 478.15, F.S.A., requires licensees maintaining an established business in Florida, and who are not employees of an established place of business, to pay an annual license fee of $5.

Section 478.16, F.S.A., authorizes the Board to revoke the license of any licensee failing to pay an annual license fee required by the terms of the Act, but procedure for revocation of licenses and reinstatement thereof is set out by the terms of Act.Section 478.22, F.S.A., provides that any person violating any of the terms of the Act as defined therein shall be guilty of a misdemeanor and upon conviction be find not less than $50 nor more than $250, etc.John Charles DeCerb, when taken into custody, by habeas corpus proceedings, challenged the constitutionality of the Act in the Circuit Court of Dade County and there his several contentions were sustained and by an appropriate order was discharged from custody.An appeal was taken to this Court as provided by Statute.

Counsel for the appellee contend that the practice of photography has no relation to the public welfare and does not affect the public interest.That the terms and provisions of the challenged Act attempting regulation have the effect of depriving the appellee of fundamental rights vouchsafed by our State and Federal Constitutions and for these reasons the Act is void, invalid and unenforceable.Counsel for appellant contend that it was competent for the Legislature to define photography; to declare that its practice has a relation to the general welfare; to provide standards of efficiency; to issue...