Blakeley v. Miller
| Decision Date | 15 December 1942 |
| Docket Number | 46191. |
| Citation | 7 N.W.2d 11,232 Iowa 980 |
| Parties | BLAKELEY v. MILLER, Real Estate Com'r. |
| Court | Iowa Supreme Court |
John M. Rankin, Atty. Gen., and Charles W. Lyon, Sp. Asst. Atty Gen. (James R. Leverett, of Council Bluffs, and I. H Tomlinson, of Des Moines, of counsel), for appellant.
Ralph H. Munro, of Fairfield, for appellee.
Ben H Blakely was the holder of a real estate broker's license issued under authority of Chapter 91.2 of the 1939 Code of Iowa. Information was brought to the attention of Earl G Miller, acting in his capacity as Real Estate Commissioner of the State of Iowa, that the said Ben H. Blakely had been appointed by the District Court of Jefferson County, Iowa, as a referee in a partition action involving real estate belonging to several owners thereof, with express order of court to sell and dispose of said land, the proceeds of which were to be divided between the several owners as their interests appeared, and while acting as such referee, Ben H. Blakeley so conducted himself as to cause the court to discharge him as said referee without compensation. Thereupon the real estate commissioner gave notice and had a complaint served upon Ben H. Blakeley of a hearing in reference to said matter, which meeting was held on the 8th day of April, 1942. Blakeley appeared at the hearing and was represented by counsel. Evidence was taken and exhibits were offered and the commissioner found that Ben H. Blakeley was guilty of acts in connection with his duties as referee, which were in violation of the provisions of section 1905.45 of the Code of Iowa, and entered an order revoking the license of Ben H. Blakeley as a real estate broker, from which finding of fact and order Ben H. Blakeley commenced this action in certiorari in which he claimed and alleged that the commissioner was acting illegally and without jurisdiction, and after a hearing, at which all parties were represented by counsel, the lower court entered a decree sustaining the writ of certiorari and annulling the order of the real estate commissioner of the state of Iowa revoking the real estate broker's license of Ben H. Blakeley. Earl G. Miller, Real Estate Commissioner of the State of Iowa, has appealed to this court.
The appellant in his brief and argument states, we quote: "This appeal involves, under the record, but one question and that question is as to whether or not the acts and conduct of Ben H. Blakeley, Plaintiff-Appellee as set out in the notice and complaint and also in the 'Findings of Fact' of the Real Estate Commissioner of Iowa, bring the Plaintiff within the purview of Section 1905.45 of Chapter 91.2 of the Code of Iowa, and make him amenable to the provisions thereof."
In section 1905.23 of the 1939 Code of Iowa, we find that the legislature has provided that the provisions of Chapter 91.2 will not apply to certain persons. We quote: "* * * nor shall this chapter apply to an attorney admitted to practice in Iowa; nor shall it be held to include, while acting as such, a receiver, trustee in bankruptcy, administrator or executor, or any person selling real estate under order of any court, nor to include a trustee acting under a trust agreement, deed of trust, * * *."
Thus we find that the legislature by specific enactment provided that the requirements of Chapter 91.2 would not apply to a person selling real estate under an order of court. In this case Ben H. Blakeley was selling real estate under the order of court and it is in connection with the sale of real estate under the order of court that the charges were made against him. Section 1905.36 gives to the commissioner the right within six months, but not thereafter, after the issuance of an original certificate of registration, the right upon his own motion to ascertain whether or not one who has been granted a real estate broker's license is unworthy to hold same. The only provision of the chapter covering the revocation or suspension of a real estate broker's license after the six months' period, and in the case at bar it is conceded that Ben H. Blakeley has had a real estate broker's license for more than six months, is section 1905.45 of the Code of Iowa. We set out the material parts of that section:
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