Territory v. Kraft

• Decision Date: 17 April 1935
• Docket Number: No. 2186.,2186.
• Citation: 33 Haw. 397
• Parties: TERRITORY v. FRITZ KRAFT.
• Court: Hawaii Supreme Court

33 Haw. 397

TERRITORY

v.FRITZ KRAFT.

No. 2186.

Supreme Court of the Territory of Hawai‘i.

Submitted March 28, 1935.

Decided April 17, 1935.

APPEAL FROM DISTRICT MAGISTRATE OF HONOLULU.

Syllabus by the Court

Act 103, L. 1933, in so far as it prohibits an uncertified photographer from practicing photography for compensation or holding himself out as competent to practice it is an unconstitutional exercise of the police power in that it imposes an unwarranted restriction upon the right of the citizen to engage in an innocent calling that bears no reasonable relation to the health, the morals, the safety or the general welfare of the public.

C. Y. Shimamura, Special Assistant Public Prosecutor, for the Territory.

E. J. Botts for defendant.

COKE, C. J., BANKS AND PARSONS, JJ.

OPINION OF THE COURT BY BANKS, J.

On the 7th day of August, 1934, Theodore Roosevelt Lilly filed in the district court of Honolulu a verified information alleging in substance that Fritz Kraft, on the 27th day of July, 1934, for hire and reward and without having complied with the provisions of Act 103, L. 1933, and in violation of the provisions thereof, took certain photographs of a group including Franklin D. Roosevelt, President of the United States, and Joseph B. Poindexter, governor of the Territory of Hawaii, while they were visiting the Shriners' Hospital for crippled children in Honolulu and sold the same for thirty-five cents a copy. Upon this information a warrant of arrest was issued and served on the defendant, who was duly brought before the magistrate to answer the charge made against him. By way of defense he filed a demurrer challenging the constitutionality of the Act. The demurrer was overruled. The defendant was adjudged guilty and was sentenced to pay a fine of five dollars together with costs of court amounting to two dollars and fifty cents. The defendant appealed to this court on points of law, which, like the demurrer, present constitutional questions.

For the purposes of the instant case the following is a sufficient summary of the Act under consideration: Section 1 creates a territorial board of photography and provides for the appointment of its members. Section 2 defines a professional photographer as “a person who holds himself out to the public as a practicing photographer skilled in the knowledge and science of photography and who makes photographs for compensation or for sale, or for hire.” Section 4 provides for the exemption from examination of all persons who for a continuous period of three years immediately preceding the appointment of the board have been practicing photography in the Territory and authorizes the issuance to such persons of a certificate upon payment of a fee of five dollars. Section 6 relates to the investigation and examination of applicants and the issuance of certificates. Sections 7 and 8 relate to the periods and methods of examination and the powers of the board in connection therewith. Section 9 relates to the residence and age of applicants and the condition upon which they are entitled to practice or assume to practice as certified professional photographers. Section 10 relates to the power of the board to waive examination in certain instances. Section 11 relates to the payment of an annual fee by those receiving certificates. Section 12 relates to the power of the board to revoke certificates. Section 13 relates to the payment of fees by applicants for examination. Section 14 provides for the exemption from the Act of certain classes of persons and photographic work for certain purposes. Section 15 relates to the salary of the secretary of the board. Section 16 relates to the payment of expenses of the board and provides for the deposit of the funds received with the Territory. Section 9 reads: “Any bona fide resident of the Territory over the age of twenty years who has passed a satisfactory examination (unless otherwise exempt from such examination as herein provided), shall receive a certificate of his qualifications to practice as a certified professional photographer. No other person and no corporation shall assume or use such title, or any other words, letters or figures, to indicate that such person is a certified professional photographer.” Section 17 is as follows: “Any person who shall practice or hold himself out as qualified to practice photography in the Territory of Hawaii without first having complied with the provisions of this Act, or who shall violate any provisions of this Act, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding two hundred dollars or by imprisonment for a term not exceeding one year, or by both such fine and imprisonment.”

But for the provision of section 17 which prohibits any one from practicing photography in the Territory without first having complied with the provisions of the Act we would be willing to say that all the legislature intended to prohibit was the holding out by one as a certified professional photographer when in fact he had not been so certified by the board. This would place our Act in the same category as the statutes of New York, Texas, Louisiana and Alabama, which relate to accountants and which have been held constitutional. Our own legislature in 1923 also enacted a statute relating to accountancy (now Ch. 228, R. L. 1935) and, like New York, Texas, Louisiana and Alabama, limited the restriction which it laid upon those following this business to falsely assuming to be certified accountants and left the right to engage in it, when there was no such assumption, untrammeled. In this respect the accountancy statute is unlike Act 103 which prohibits all persons, except those who are not required to take an examination, from practicing photography who have not received a certificate from the board of examiners. With this construction of Act 103 in mind let us consider its constitutionality.

The Territory of Hawaii derives its legislative powers from section 55 of the Organic Act. This grant of power is thus expressed in the first sentence of the section: “The legislative power of the Territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States locally applicable.”

The primary question therefore presented by the appeal is whether by the passage of Act 103 the legislature exceeded the powers conferred upon it. More specifically the question is, Was it within the constitutional power of the legislature to exclude from the practice of photography for profit all persons who had not complied with the provisions of the Act? The answer to this inquiry depends on the nature of photography--whether as an occupation it is innocent and innocuous or whether it is infected with some quality that might render it dangerous to the morals, the health, the comfort or the welfare of those who constitute the public. If the latter is true it is within the police power of the legislature to place upon it the regulations and restrictions contained in the Act. If on the other hand the practice of photography is harmless and without detriment to the public welfare it was beyond the power of the legislature to restrict it to those having a certificate of proficiency.

The governing principle has many times been announced and applied by courts of last resort. In Bessette v. The People, 193 Ill. 334, the court had before it the validity of a statute quite similar to our photography statute. Under the Illinois law no one was permitted to engage in the business of horseshoeing who had not passed an examination given by a board and received from the board a certificate of his qualifications and paid a license fee. In holding the statute unconstitutional the court said (pp. 343-344, 346): “The general rule is, that a license fee will not be exacted for the purpose of regulating any trade, calling or occupation, unless there is something in the nature of such trade, calling or occupation, or in the circumstances surrounding it, which calls for the exercise by the State of its police power. In other words, licenses for regulation merely, and not for revenue, can only be justified upon the ground that a necessity exists for the exercise by the State, either directly, or through delegation to municipal corporations, of its police power. The police power is limited to enactments which have reference to the public health or comfort, or to the safety or welfare of society. * * * An application of the principles above referred to to the provisions of this Act of 1897 in relation to the business of horseshoeing condemns it as an invalid law. It is impossible to conceive how the health, comfort, safety or welfare of society is to be promoted by requiring a horse-shoer to practice the business of horse-shoeing for four years, and submit to an examination by a board of examiners, and pay a license fee for the privilege of exercising his calling. The ends to be secured by the exercise of the police power are the public health, comfort, safety or welfare, but this measure has no relation to the ends thus specified. If this Act is valid, then the legislature of the State can regulate almost any employment of the citizen by the requirement of previous study, and previous examination, and the...