State v. Dixon

Barnhill, J.,

concurring: The majority opinion discusses Art. II, see. 29, of the Constitution, upon the theory that it divides legislation into two classes: “Local, private or special,” and “general.” But, in discussing the particular legislation under consideration, it deals with the act upon the basis that it is local. While it may be that every local act may be classified as “special,” every special act is not necessarily “local.” For that reason, while I concur in the majority view that the legislation is local in nature, I am persuaded to add a few words of discussion concerning the legislation as a special act.

The commonly accepted definition of a general law as distinguished from a special or local law is that it is a law that embraces a class of subjects or places and does not omit any subject or place naturally belonging to such class. A law is general in the constitutional sense when it applies to and operates uniformly on all members of any class of persons, places or things requiring legislation peculiar to itself in matters covered by the law. People v. Borgeson, 335 Ill., 136, 166 N. E., 451.

On the other hand, a special statute is one which does not include all of the persons within a given class, but relates to less than all the class, or one which relates and applies to particular members or a particular section of a class, either particularized by the express terms of the act or separated by any method of selection from the whole class to which the law might but for such limitation be applicable. Arps v. State Highway Commission, 90 Mont., 152, 300 P., 549; City of Springfield v. Smith, 322 Mo., 1129, 19 S. W., 2nd Ed., 1; State ex rel. Powell v. State Bank, 80 A. L. R., 1494; R. R. v. Cherokee County, 177 N. C., 86.

The term “special” in the constitutional provision prohibiting special laws in respect to certain subjects means laws imposing particular burdens or conferring special rights, privileges or immunities upon a portion of the people of the State without including therein and being applicable to all of the class throughout the State. Matthews v. City of Chicago, 342 Ill., 120, 174 N. E., 335.

The legislation under consideration is general in its terms and applies to real estate brokers and salesmen as a class. Its caption provides that it is “an act to define real estate brokers and salesmen; to provide for the regulation, supervision and licensing thereof; etc.”; and in sec. 17 the purpose of the act is declared to be: “To provide for the regulation *172and discipline of real estate brokers and salesmen doing business within the State of North Carolina to the end that the interest and welfare of the people of said State shall be safeguarded by such regulation.” Thus, it appears that the purpose of the act is to regulate the trade of real estate brokers and salesmen, and that the legislature grouped the real estate brokers of the State as a whole into a class sufficiently distinguished by characteristics to make it the subject of legislation. However, notwithstanding the declared intent of the Legislature to deal with real estate brokers and salesmen as a class throughout the State, the act by sec. 17½ exempts from the operation thereof 64 counties. It appears, therefore, that the act does not apply to real estate brokers and salesmen throughout the State as a class, notwithstanding the declared purpose of the Legislature. The lawmaking body made a reasonable classification of citizens and then, by the express terms of the act, excluded from its operation a large portion of the class. To my mind, this alone stamps the legislation as special, brings it within the prohibitive provisions of Art. II, sec. 29, of the Constitution, and makes it invalid.

It may be conceded that the lawmaking body enacted the statute upon the theory that it was beneficial to the people of North Carolina and intended to protect the interests and promote the general welfare of the people of the State. If so, there is no sound reason why the people of the 64 excluded counties should n'ot be protected in like manner. To regulate real estate salesmen and brokers for the protection of the people in 36 counties and to exclude the people in 64 counties from like protection clearly makes the act “special” and confers rights, privileges and immunities upon the people of the 36 counties which are denied to the people of 64 counties. If it be contended that the statute classified real estate dealers in the 36 counties included in the act as a group or class separate and apart from such dealers living in the 64 counties excluded, then the classification is arbitrary and discriminatory, without any sound basis in fact to support the classification.

I am, therefore, firmly of the opinion that the act under discussion is legislation clearly prohibited by Art. II, sec. 29, of the Constitution. It is local, it is special, the classification is arbitrary and discriminatory, and it confers upon citizens in one group of counties special rights and privileges that are denied to citizens of a larger group in direct violation of the declared purpose of the act.

The majority opinion is fully supported by In re Harris and by S. v. Warren, therein cited. While the conflict between the general licensing policy of the State and the act under consideration may be properly considered, it is not, in my opinion, essential to the determination of this cause.