¶1dissenting: Does tbe General Assembly have power to create an administrative agency with power to deprive a citizen of tbe right to practice one of tbe ordinary and usual trades, such as commercial photography? Tbe majority view answers this-..question in tbe affirmative. From this result I am compelled to dissent, as I do not find tbe reasoning of tbe majority opinion convincing either' as -to tbe present state of tbe law on tbe subject or as to tbe social utility^ and desirability of tbe legal theory there propounded. ' - -
¶2Tbe decision of tbe Court is predicated largely upon tbe doctrines of S. v. Warren, 211 N. C., 75; Roach v. Durham, 204 N. C., 587; and S. v. Lockey, 198 N. C., 551. Tbe former declared unconstitutional a local law seeking to regulate real estate brokers in contravention of a State-wide, revenue, licensing act applicable to such brokers; although dicta in that opinion indicate that such a State-wide act would be upheld, tbe Court there expressly declined to pass upon tbe question. Tbe Warren case, supra, is, therefore, authority only for what it bolds, nothing more. Tbe Roach case, supra, upheld a State-wide plumbers licensing act as a constitutional effort to promote tbe “health, comfort and safety of tbe people.” Tbe Loclcey case, supra, upheld tbe Statewide barbers licensing act as a valid exercise of tbe police power “in tbe protection of tbe health of tbe public.” Tbe soundness of tbe Roachand Loclcey cases, supra, is beyond question, as tbe acts considered in both of these cases bore directly upon tbe protection of public health, a matter clearly constituting a valid exercise of tbe police power. However, neither of these eases constitutes authority permitting tbe General Assembly by administrative licensing to deprive a tradesman or workman of tbe right to exercise a usual and ordinary trade or calling.
¶3Tbe constitutional limits of tbe power of tbe General Assembly to regulate vocations through licensing has heretofore been limited strictly to tbe professions, with tbe possible exception of barbering, in which case tbe protection of tbe public health was so obviously involved. Regulation by licensing of tbe practice of medicine and surgery (S. v. Van Doran, 109 N. C., 864; S. v. Call, 121 N. C., 643), of dentistry (S. v. Hicks, 143 N. C., 689), of osteopathy, chiropractic, and suggesto-tberapby (S. v. Siler, 169 N. C., 315), and of accounting (S. v. Scott, 182 N. C., 865), has been approved as constitutional. The power of tbe General Assembly to indicate qualifications of attorneys has long been recognized (Ex parte Schenck, 65 N. C., 353; Kane v. Haywood, *68266 N. C., 1; In re Applicants for License, 143 N. C., 1), but the question as to the constitutionality of the State Bar Licensing Act has not yet been passed upon (see In re Parker, 209 N. C., 693; In re West, 212 N. C., 189). With the exception of barbering, all of these vocations whose regulation has been upheld are distinctly professional in nature, are achieved only after thorough schooling, involve a peculiarly personal trust relationship to their clientele, and imply necessarily a distinct reliance upon the individual knowledge, judgment and skill of the practitioner, j The regulation of business and professions through administrative licensing has heretofore been limited to those professions having a direct and positive relation to the health, safety, or morals of the community. The trade of photography bears no genuine resemblance to any of the professions indicated; nor can it be considered on a parity with barbering, since the normal and usual practice of the trade has no necessary relationship to either health, safety, or morals. Granted that a careless use of chemicals might endanger health, that a blundering and ignorant use of the dark-room might cause a serious fire, and that a venal photographer might specialize in' the production and sale of fraudulent or obscene photographs, these are exceptional instances and abuses of power and are no more inherent in the trade of photography than in any other usual and ordinary calling or occupation. « , >
¶4The limits heretofore recognized with respect to the regulation of business by. administrative licensing were not accidental. In S. v. Lockey, 198 N. C., at p. 558, Clarkson, J., cites with approval the words of Sutherland, J., in Liggett Co. v. Baldrige, 278 U. S., 105, 111-112, as follows, “The police ppwer may be exerted in the form of state legislation where otherwise the effect may be to invade rights guaranteed by the Fourteenth Amendment (in this case his business as a property right) only when such legislation bears a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare.” In the same case, at p. 113, Sutherland, J., continued, “A state cannot, 'under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them.’ Burns Baking Co. v. Bryan, 264 U. S., 504, 513, 44 S. Ct., 412, 413 (68 L. Ed., 813, 32 A. L. R., 661). See, also — (citing many U. S. Supreme Court cases).” Likewise, in S. v. Warren, 211 N. C., 75, the limitation on the exercise of the police power was recognized in the following quotations, there quoted with approval, “In Rawls v. Jenkins, 212 Ky., 287 (279 S. W., 350), at p. 292, it is said, 'If occasional opportunity for fraud is to be the test, then there is no reason why every grocer, every merchant, every automobile dealer, every keeper of a garage, every manufacturer, and every mechanic who deals more frequently with the public in general, and whose opportunities for fraud are far greater than those of the real *683estate agent or salesman, may not be put on tbe same basis. If that be done, then only those who, in the opinion of certain boards or the courts,' have the necessary moral qualifications will be permitted to engage in the ordinary occupations of life. The result will be that all others who fail to establish their moral fitness will not only be deprived of their means of livelihood, but will become a burden either on their families- and friends or the community at large. In our opinion, the right to earn one’s daily bread cannot be made to hang on so narrow a thread. Broad as is the police power, its limit is exceeded when the state undertakes to require moral qualifications of one who wishes to engage or continue in a business which, as usually conducted, is no more dangerous' to the public than any other ordinary occupation of life. As said of the real estate agent in Hager, State Auditor, v. Walker, 128 Ky., 1, 107 S. W., 254, 15 L. R. A. (N. S.), 195, 129 Am. St. Rep., 238: The occupation taxed is essentially a harmless one. It has none of the features requiring police regulation, and there is no reason why the police power should be invoked concerning it.’ ” What is there said concerning real estate agents and salesmen is equally applicable here to photographers.
¶5The right to iicense upon examination necessarily implies the power to exclude by refusing to grant such license. The power to exclude men from the ordinary and usual trades and callings common to all- communities is the power to deprive men of the right to earn an honest livelihood. ’ The right to earn a livelihood is “fundamental, natural,' inherent and inalienable, and is one of the most sacred and most valuable rights of a citizen. A person’s business occupation or calling is 'property’ within the meaning of the constitutional provisions as to due process of law and. is also included in the right to liberty and the pursuit of happiness. The right of a person to pursue a calling consistent with proper and reasonable police regulations which the particular situation may sanction, cannot be taken away by legislative enactment. The common businesses and callings of life, the ordinary trades and pursuits which are innocent in themselves and which have been followed in all communities from time immemorial, must, therefore, be free in the United States to all alike upon the same terms. . . . Moreover, it has been held that the right to choose one’s occupation includes the right to be free from unlawful interference or, control in the conduct of it.” 11 Am. Jur., “Constitutional Law,” s, 336N The discretionary power to control admission to an ordinary trade or calling has never existed in the General Assembly. “Eegulation of occupations cannot be valid where it amounts to an arbitrary or unwarranted interference with the right of the citizen to pursue any lawful business. It is dependent upon a reasonable necessity for its exercise to protect the health, safety, morals or general welfare of the state, and unless an act restrict*684ing the ordinary occupations of life can be shown to fall within these objects of the police power, the act is void. If a lawful business is of a beneficial character, and not dangerous to the public, either directly or indirectly, it cannot be subjected to any police regulation whatever. . . . Such pursuits as agriculture, merchandise, manufacturing, and industrial trades cannot be dealt with at will by the Legislature. As to them the power of regulation is comparatively slight when they are conducted and carried on upon private property and with private means.” 11 Am. Jur., “Constitutional Law,” ss. 285-286. “The right of a citizen to pursue any of the ordinary vocations on his own property and with his own means, can neither be denied nor unduly abridged by the Legislature, for the preservation of such right is the principle purpose of the Constitution itself. In such cases, the limit of legislative power is regulation, and that power must be cautiously and sparingly exercised, unless the business is of such character as places it within the category of social and economic ills.” Quoted with approval in 2 Cooley’s Constitutional Limitations, 8th Ed., p. 1329, from Ex Parte Dickey, 76 W. Va., 576, 85 S. E., 781, L. R. A., 1915-E, 840.
¶6This photographers licensing act can only be justified, if at all, as a valid exercise of the police power. J As Willis has so accurately stated, “There are two main requirements of a proper exercise of the police power: (1) There must be a social interest to be protected which is more important than the social interest in personal liberty, and (2) there must be, as a means for the accomplishment of this end, something which bears a substantial relation thereto.” Constitutional Law, p. 728/] This is essentially class legislation put forward by a particular group' of tradesmen to the end that those now within the trade may limit newcomers seeking to enter the field of their livelihood. The advocates of the measure insist that its approval will necessarily make available tov the public more skilled and more honest photographers. In return for this vague promise of greater public service the established photographers will be given a virtual monopoly of the trade and with it such incidentals as the power to control prices and the character of their services. The “social interest” which this law would tend to protect is a very general one, so evanescent in its characteristics as to belong in the realm of metaphysics and psychic phenomena. On the other hand, the very real and positive benefits to the particular group at the expense of the loss of liberty of citizens generally is quite tangible. In order that a trade guild with state-granted powers of exclusion be established, a serious and dangerous abridgement of one of the most precious rights of American citizens — the right to earn a livelihood — is advocated.
¶7Written into our organic law is a strong repulsion for special privileges and monopolies. In our Bill of Rights we find, “No man or set of men are entitled to exclusive or separate emoluments or privileges *685from tbe community but in consideration of public service,” reinforced by tbe principle tbat “perpetuities and monopolies are contrary to tbe genius of a free state and ought not be allowed.” N. 0. Constitution, Art. I, ss. 1, 31. Our legal tradition in dealing witb business and trade bas been marked by an effort to encourage free enterprise, free alike from domination by government and monopoly. Our working theory bas been tbat under a competitive economic system, prices, tbe quality of tbe product, and tbe type of service rendered will be sufficiently determined by tbe forces of free competition. By and large, tbe uncontrolled market place bas proven itself a fair arbiter which bas encouraged initiative and stimulated tbe sale of tbe best pecuniary values. Tbe task of government bas been largely tbat of an umpire whose duty it was to assure tbe free play of effective, open competition. Except in those businesses and professions marked peculiarly witb some social interest or public service, experience bas shown tbat a very limited interference witb business is. socially desirable.
¶8■ Old truths are valuable ballast and tbe'experienced mariner does not cast them overboard at tbe first suggestion of some passenger new to tbe ways of tbe sea. In our rapidly changing social and economic life it may become necessary to advance tbe banner of tbe police power into new and as yet unknown territory, but I am convinced tbat tbe instant case is not one demanding tbat tbe old and recognized boundaries of tbe police power be ignored. Almost every trade and calling is tinged witb some element of social interest or public service, for if tbe work bas no social utility it rarely survives. However, few trades or callings are so essentially vested witb a social interest as to justify their establishment, by legislative grant, as close-knit, self-governing, trade monopolies having tbe power to exclude those seeking to compete witb veterans of tbe craft. Tbe life of our society is not yet so. thoroughly regimented tbat tbe right to work and earn an honest living in tbe trade of one’s choice is dependent upon tbe approval of some bureau, commission, or examining board, itself interested perhaps in excluding new workers from its own crowded vineyard. Nor am I yet convinced tbat it would be better so. Tbe view of tbe majority in this case, in my opinion, goes well beyond tbe previously approved limits of tbe valid exercise of tbe police power in this State.
¶9While photography requires some skill, it is tbe same type of skill required by other trades and vocations. Such danger as arises from tbe use of chemicals, celluloid and other combustible materials, is to tbe individual and not to tbe public as a whole. Tbe fire hazard, if any, is not -near so great as tbat resulting from tbe operation of dry cleaning 'plants, gasoline stations and other ordinary trades. Photographs, it is true, are used in evidence. However, as stated in tbe majority opinion, they are used only to illustrate sworn testimony. They are not admis*686sible in evidence until or unless some witness bas first sworn that they correctly represent the objects or conditions they purport to portray. If there is perjury it arises out of the testimony of the witness and not out of the use of the photograph. The photograph merely makes more intelligible to the jury the evidence of the witness.
¶10There are those lacking in moral character connected with all trades and callings. Good morals cannot be created by legislation. The mere fact that some who are. photographers have an opportunity to perpetrate frauds is not unusual. The quality of a photograph can more easily be detected by the lay public than can the quality of cloth or other articles of merchandise, particularly when such merchandise is of a mechanical composition, such as watches and automobiles. I am, therefore, unable to conceive how the practice of photography has such a rational and substantial relationship to social needs or to public health, safety and good morals as to make it a subject of legislation under the police power of the State.