North Carolina Ass'n of Licensed Detectives v. Morgan , 17 N.C. App. 701 ( 1973 )

195 S.E.2d 357 (1973) 17 N.C. App. 701

NORTH CAROLINA ASSOCIATION OF LICENSED DETECTIVES and Detective Service of North Carolina, Inc.
v.
Robert MORGAN, Attorney General of the State of North Carolina, and Charles Dunn, Director, North Carolina State Bureau of Investigation.

No. 7310SC64.

Court of Appeals of North Carolina.

March 28, 1973.

Atty. Gen. Robert Morgan by Associate Atty. Gen. Ann Reed and Asst. Atty. Gen., Richard B. Conely for defendants appellees.

Smith, Patterson, Follin & Curtis by Marion G. Follin, III, Greensboro, for plaintiffs appellants.

CAMPBELL, Judge.

Appellants concede that the State may regulate the private detective business by the issuance of licenses to persons who meet specified qualifications. There is authority supporting such regulation. Lehon v. Atlanta, 242 U.S. 53, 37 S. Ct. 70, 61 L. Ed. 145 (1916).

Private or special police are public officers, Tate v. R.R., 205 N.C. 51, 169 S.E. 816 (1933), and, therefore, a proper subject of regulation by the State in exercise of its police power.

The main thrust of appellants' argument is that G.S. § 66-49.7(f) deprives them of the right to pursue a lawful occupation; and, as the statute is not based upon a reasonable classification, it is therefore unconstitutional.

The Fifth and Fourteenth Amendments, Due Process Clause, together with the Law of the Land Clause of Article I, § 19 of the North Carolina Constitution, provide that no person shall be deprived of property without due process of law. However, none of these provisions has the effect of overriding the power of state and local government to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort or general welfare of the community. Atlantic Coast Line R. Co. v. Goldsboro, 232 U.S. 548, 34 S. Ct. 364, 58 L. Ed. 721 (1914).

Whether it is a violation of the Law of the Land Clause (Article I, § 19) or a valid exercise of the police power is a question of degree and of reasonableness in relation to the public good likely to result from it. In re Hospital, 282 N.C. 542, 192 S.E.2d 729 (1973).

". . . The right to work and to earn a livelihood is a property right that cannot be taken away except under the police power of the State in the paramount public interest for reasons of health, safety, morals, or public welfare. . . ." Roller v. Allen, 245 N.C. 516, 96 S.E.2d 851 (1957). Even though the state police power does extend to regulation of private detectives and private policemen, not every regulation of those activities must necessarily fall within the scope of the police power. In re Hospital, supra.

". . . If a statute is to be sustained as a legitimate exercise of the police power, it must have a rational, real, or substantial relation to the public health, morals, order, or safety, or the general welfare. In brief, it must be reasonably necessary to promote the accomplishment of a public good, or to prevent the infliction of a public harm.. . ." State v. Ballance, 229 N.C. 764, 51 S.E.2d 731 (1949).

Speaking on this issue, the United States Supreme Court held, in an opinion cited in In re Hospital, supra, that:

"To justify the state in thus interposing its authority in behalf of the public, it must appear—First, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations." Lawton v. Steele, 152 U.S. 133, 137, 14 S. Ct. 499, 501, 38 L. Ed. 385 (1894).

When the state's exercise of its police power works to deny a person, association or corporation the right to engage in a business, otherwise lawful, such deprivation of liberty requires a substantially greater likelihood of benefit to the public in order to enable it to survive an attack based upon Article I, § 19 of the Constitution of North Carolina. In re Hospital, supra.

The principles applicable to an equal protection claim are similar: the classification must be reasonable, not arbitrary, and must rest on some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike. Discrimination in a state statute must be based on differences that are reasonably related to the purposes of the statute.

A state police law's classification which has some reasonable basis does not offend against the equal protection clause of the Fourteenth Amendment merely because it is not made with mathematical nicety, or because in practice it results in some inequality. On the contrary, the discrimination must be shown to be "invidious discrimination". Morey v. Doud, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957).

In State v. Greenwood, 280 N.C. 651, 187 S.E.2d 8 (1972), the North Carolina Supreme Court held that the equal protection clause imposes upon lawmaking bodies the requirement that any legislative classification be based on differences that are reasonably related to the purposes of the act in which it is found. While the equal protection clause does not require perfection in classification, and legislative determination is entitled to great weight, it does not allow arbitrary discrimination between that activity which is prohibited and that which is not.

Detectives who are private policemen would have access to persons, records, places and information not available to a detective without the benefit of such office. Private detectives, not being public officers, have no more right to carry firearms or other means of defense, than ordinary citizens, nor should they be permitted to wear badges or insignia similar to that of public officers. Private detectives who were allowed to be special policemen also would have authority to exercise "all the powers of municipal and county police officers to make arrests for both felonies and misdemeanors." (G.S. § 74A-2).

It is the purpose of G.S. § 66-49.7(f) to prevent individuals from acting in the dual capacity of private detective and public, although limited, police officer. We hold, first, that there is a real and fundamental difference between private detectives and special police, which distinction is that while the former are private persons no different from ordinary citizens, the latter are public officers, and that this distinction between the two is a valid factual status reasonably related to the purpose of the Act upon which to base discrimination not constitutionally forbidden by the equal protection clause of Article I, § 19. State v. Greenwood, supra.

We hold, second, that the regulation of persons eligible to become licensed private detectives and commissioned special policemen is an exercise of authority in the interest of the general public, rather than a particular class.

Finally, we hold that the provisions of G.S. § 66-49.7(f) are a means reasonably necessary for the accomplishment of a public purpose which the General Assembly has a right to secure.

G.S. § 66-49.7(f) is a valid legislative expression of a public policy in North Carolina prohibiting a special policeman, who is a public officer, from holding an incompatible second office. Conversely, G.S. § 66-49.7(f) is a valid regulation of the powers and scope of authority of private detectives, denying them the power to arrest and otherwise conduct themselves as policemen and servants of the public.

We have considered but do not find merit in appellants' other assignments of error.

No error.

MORRIS and PARKER, JJ., concur.