O'Neal v. Georgia Real Estate Commission, 48192
| Decision Date | 14 June 1973 |
| Docket Number | No. 2,No. 48192,48192,2 |
| Citation | 129 Ga.App. 211,199 S.E.2d 362 |
| Parties | J. W. O'NEAL v. GEORGIA REAL ESTATE COMMISSION |
| Court | Georgia Court of Appeals |
Johnston & McCarter, Ralph E. Carlisle, Atlanta, for appellant.
Arthur K. Bolton, Atty. Gen., Timothy J. Sweeney, H. Andrew Owen, Asst. Attys. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
On November 3, 1970, J. W. O'Neal was notified that he was successful in passing the examination for a real estate broker's license. He was subsequently issued a broker's license, and thereafter the Georgia Real Estate Commission received applications from two real estate salesmen seeking to transfer to this broker's firm. Both salesmen were informed by the commission that it had adopted a rule requiring brokers to be full-time brokers in order to be eligible to have real estate salesmen work under such broker; and that the broker in question was a part-time broker, and hence ineligible to have the license of these real estate agents transferred to him.
O'Neal requested a hearing before the commission, in which hearing it was shown that he was a full-time employee as an airplane pilot. The commission ruled that O'Neal was a part-time broker and had thus violated its Rule 520-5-. 11.
Thereupon, O'Neal brought a petition in the Superior Court of Fulton County, in which he sought a judicial review and declaratory judgment to declare the aforesaid rule null and void. The commission answered, denying the material allegations of the complaint and alleged further that it had adopted the rule pursuant to its authority to promulgate rules and regulations under Code Chapter 84-14, as amended, and under the Georgia Administrative Procedure Act.
The rule in question was set forth fully in defendant's answer as follows: Held:
By statute (Code Ann. § 84-1402; Ga.L.1965, pp. 629, 631) real estate salesmen are entitled to employment by real estate brokers, which conversely means that real estate brokers are by law entitled to employ real estate salesmen. Where rights are conferred by the Constitution or by statutes, mere rules of administrative bodies cannot amend or repeal those constitutional or statutory rights. In Turner v. Wilburn, 206 Ga. 149(a), 56 S.E.2d 285, it is held that one otherwise eligible to an office cannot be rendered ineligible without constitutional or statutory authority. Of course, this means that an administrative board is without power or authority to promulgate rules which would render such person ineligible to hold office.
In Crawley v. Seignious, 213 Ga. 810, 812, 102 S.E.2d 38, 40, the Supreme Court of Georgia held:
In the Crawley case, supra, it was squarely held that the Board...
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