State v. Parrish

Annotate this Case

118 S.E.2d 786 (1961)

254 N.C. 301


No. 147.

Supreme Court of North Carolina.

March 22, 1961.

*787 T. W. Bruton, Atty. Gen., and G. A. Jones, Jr., Asst. Atty. Gen., for the State.

W. G. Smith, Wilmington, for Petitioner Mohn.

MOORE, Justice.

Chapter 673, Session Laws of 1945, provides for the regulation of the business of professional bondsman in New Hanover County. It defines a professional bondsman as "any individual, group of individuals, or corporation, who shall, for pay or profit, execute any bond for the release of any person or property from custody of law, or for the guarantee of any penalty *788 contained in any bond, or recognizance." Among other regulations, is requires that a license be procured before engaging in this business, and establishes a schedule of maximum fees. It declares that the violation of any provisions of the Act shall constitute a misdemeanor. There are two provisions for suspension or revocation of license: (1) "* * * upon conviction the court shall suspend or revoke the license of such professional bondsman for * * * two years"; and (2) "The Governing Board of the City of Wilmington or the board of county commissioners shall have the power to inquire into the violation of any of the provisions of this Act and to revoke the license of any professional bondsman upon satisfactory proof of such violation, after said bondsman has been given an opportunity to be heard in his defense."

The petitioner has not been indicted, arrested, tried or convicted for the violation of any of the provisions of the Act in any criminal court. Furthermore, his conduct as a professional bondsman has not, so far as the record discloses, been the subject of inquiry by the official board of either the county or city, and he has had no hearing before these boards. It is not permissible that he be tried by proxy. The court was without authority to suspend or revoke his license.

A license to engage in business or practice a profession is a property right that cannot be taken away without due process of law. The granting of such license is a right conferred by administrative act, but the deprivation of the right is a judicial act requiring due process. Boyce v. City of Gastonia, 227 N.C. 139, 41 S.E.2d 355; In re Carter, 1951, 89 U.S.App.D.C. 310, 195 F.2d 15, certiorari denied 342 U.S. 862, 72 S. Ct. 89, 96 L. Ed. 648; In re Carter, 1949, 85 U.S.App.D.C. 229, 177 F.2d 75, certiorari denied Laws v. Carter, 338 U.S. 900, 70 S. Ct. 250, 94 L. Ed. 554; Laisne v. California State Board of Optometry, Cal. 1940, 101 P.2d 787; In re Greene, D.C. Mun.App.1957, 130 A.2d 593.

"Article I, Section 17, of the North Carolina Constitution was copied in substance from Magna Charta by the framers of the Constitution of 1776, and prescribes that `no person ought to be taken, imprisoned, or disseized of his freehold, liberties or privileges, or outlawed or exiled, or in any manner deprived of his life, liberty or property, but by the law of the land.' The term `law of the land' is synonymous with `due process of law,' a phrase appearing in the Federal Constitution, Amend. 14, and the organic law of many states." National Surety Corp. v. Sharpe, 232 N.C. 98, 103, 59 S.E.2d 593, 597.

"The significance of the law of the land in its procedural aspect is laid bare by a famous phrase used by Daniel Webster in his argument in the Dartmouth College case. `By the law of the land is most clearly intended the general law, a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial.' Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. Ed. 629." Eason v. Spence, 232 N.C. 579, 584, 61 S.E.2d 717, 721.

The court was without jurisdiction to enter the judgment insofar as it purports to suspend or revoke the license of J. J. Mohn to engage in the business of professional bondsman or insofar as it purports to adjudicate any of his rights, and the portion of the judgment affecting him or his license is utterly void. The cause is remanded that a proper order be entered striking out and declaring void all portions of the judgment affecting petitioner's license and right to do business as a professional bondsman. The portion of the judgment relating to Parrish is, of course, not disturbed.

In fairness, it is pointed out that the Attorney General, in his brief, with commendable candor, admitted error.

Error and remanded.