In re Richardson
| Decision Date | 18 November 1947 |
| Docket Number | Case Number: 32800 |
| Citation | 199 Okla. 406,1947 OK 347,184 P.2d 642 |
| Parties | In re RICHARDSON |
| Court | Oklahoma Supreme Court |
¶0 1. CONSTITUTIONAL LAW - Right of Legislature to judge of conditions warranting enactments, which may not be set aside except when irreconcilable with conception of due process of law.
The Legislature is itself the judge of the conditions which warrant legislative enactments, and they are only to be set aside when they involve such palpable abuse of power and lack of reasonableness to accomplish a lawful end that they may be said to be merely arbitrary, capricious, and unreasonable, and hence irreconcilable with the conception of due process of law.
2. ABSTRACTS OF TITLE - CONSTITUTIONAL LAW - Statute regulating business of abstracting - Police power - Not violative of 14th Amendment to U.S. Constitution or provisions of Oklahoma Constitution.
1 O.S. 1941 §§ 13 to 16, inclusive, providing that persons thereafter desiring to enter into the business of abstracting titles to real estate, who were not engaged in such business at the date the act was passed, should have for use in such business a set of abstract books or other system of indexes, compiled from the instruments of record affecting real estate in the office of the county clerk, is a reasonable and valid regulation under the police power, and does not violate the 14th Amendment to the Constitution of the United States, nor any of the provisions of the Constitution of this state.
Appeal from District Court, Oklahoma County; A.P. Van Meter, Judge.
In the matter of the application of J. Frank Richardson for certificate of authority for carrying on business of compiling or abstracting titles to real estate in Oklahoma county, Okla. On written protest, hearing was had, and county clerk denied the application. Applicant appealed to district court, which sustained action of county clerk. Applicant appeals from judgment of district court. Affirmed.
John Connolly, Jr., and Gerald Spencer, both of Oklahoma City, for plaintiff in error.
H.T. Tumilty and Richardson, Shartel, Cochran & Pruet, all of Oklahoma City, for defendants in error.
¶1 On September 14, 1945, J. Frank Richardson filed with the county clerk of Oklahoma county an application for a certificate of authority to engage in the business of abstracting titles to real estate in said county. A written protest to the application was filed, a hearing was had, and the county clerk denied the application. Applicant appealed to the district court, which sustained the action of the county clerk in denying the application. Applicant appeals from the judgment of the district court.
¶2 The application for the certificate alleged that the applicant resided in Oklahoma county and would maintain an office in Oklahoma City; that he had filed a bond in the sum of $5,000 with good and sufficient sureties approved by the board of county commissioners, and that he had the experience and financial ability to conduct such abstracting business. The application wholly failed to recite facts sufficient to establish that applicant had or could comply with the requirements of chapter 37, S.L. 1937 (1 O.S. 1941 §§ 13 to 16, inclusive.)
¶3 Applicant contends that said sections are unconstitutional; that they contravene the 14th Amendment to the Constitution of the United States in that they abridge his privileges as a citizen; deprive him of his property without due process of law, and deny him the equal protection of the law.
¶4 Applicant attacks chiefly the requirements of 1 O. S. 1941 § 13. That section provides as follows:
"In addition to the bond required by Section 8513, O. S. 1931, any person, firm or corporation, not now engaged in the business of abstracting, desiring to enter into the business of compiling or abstracting titles to real estate in any of the counties of the State of Oklahoma from and after the passage of this Act, shall have for use in such business an independent set of abstract books or other system of indexes compiled from the instruments of record affecting real estate in the office of the County Clerk, and not copied from the indexes in said office, showing in a sufficiently comprehensive form all instruments affecting the title to real property on file or of record in the office of the County Clerk and Court Clerk of the county wherein such business is conducted."
¶5 Section 14 provides, in part, as follows:
"The certificate of authority provided by Section 8514, O.S. 1931, shall not be issued by the County Clerk except upon written application therefor, which application shall state the name of the applicant, the location of the proposed abstract business and a further statement showing in clear and concise language the manner in which Section 1, hereof, (1 O.S. 1941, section 13) has been complied with."
¶6 The remainder of section 14 and sections 15 and 16 are procedural.
¶7 Applicant admits that he does not have an independent set of abstract books or system of indexes as required by section 13, supra, and also admits that he was not engaged in the abstracting business either on the effective date of the 1937 Act, or at the time the application was made. He urges that the requirement of section 13 that he have for use a set of abstract books or indexes imposes an unreasonable, arbitrary and capricious burden upon one who desires to enter the abstracting business, citing in support of this contention Allgeyer v. Louisiana, 165 U.S. 578, 41 L.Ed. 832, and State ex rel. Short v. Riedell, 109 Okla. 35, 233 P. 684, 42 A.L.R. 675. The case first cited holds that the right to follow any of the common occupations of life is an inalienable right. In the last cited case this court held that a law absolutely prohibiting one from holding himself out as a professional accountant or auditor, and engaging in the practice of that profession, without first taking an examination and receiving a certificate as a certified public accountant, was unconstitutional. However, in that case we pointed out that while the work of expert accountants to some degree affected the general welfare, it did not do so in a degree sufficient to justify denying their right to contract with other private individuals to do work of that nature. In substance, we held that it was not a business affected with a public interest.
¶8 That the business of abstracting titles to real estate is affected with a public interest has been recognized by the Legislature by limiting the fees which may be charged by those engaged in the business of abstracting, and by requiring bond and a certificate of authority to engage in such business. 1 O.S. 1941 §§ 1, 2 and 3. The further regulation requiring that those who desired to engage in such business after the enactment of section 13, supra, should have adequate equipment to carry on that business, must be sustained as a valid and reasonable exercise of the police power.
¶9 In Herrin v. Arnold, 183 Okla. 392, 82 P.2d 977, 119 A.L.R. 1471, we said:
"The inherent police power of the state has few fixed limitations; rather 'its limitations are plastic in their nature and will expand to meet the actual requirements of an advancing civilization and adjust themselves to the necessities of our multiplying complexities in moral, sanitary, economic, and political conditions.' "
And further:
"But the Legislature is primarily the judge of the necessity of the enactment, every possible presumption is in favor of its validity, and though the court may hold views inconsistent with the wisdom of the law it may not annul the law unless palpably in excess of legislative power."
¶10 The statements therein made were later approved by this court in Jack Lincoln Shops v. State Dry Cleaners' Board, 192 Okla. 251, 135 P.2d 332.
¶11 In State v. Abstracters' Board of Examiners (Mont.) 45 P.2d 668, the Supreme Court of Montana held a similar requirement valid for the reason that, owing to the particular nature of the business, an abstracter with proper equipment in the way of indexes or abstract books could serve the public more efficiently and with much better results than one without such equipment. In that case the court said:
"Statute requiring person desiring to conduct abstract business to obtain certificate of authority from abstracters board held not unconstitutional as regulation of business not affected with public interest and in violation of due process clause, since state's inherent police power permits reasonable regulation of business or profession when such regulation appears necessary for general welfare of people."
¶12 In the above case the Montana court based its decision that the...
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...of serious opinion does not suffice to bring them within the range of judicial cognizance.' This court, in Re Application of Richardson, 199 Okl. 406, 184 P.2d 642, 643, said: 'The Legislature is itself the judge of the conditions which warrant legislative enactments, and they are only to b......
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