OKLAHOMA REAL EST. COM'N v. NATIONAL BUSINESS & P. EXCH.

Decision Date16 November 1956
Docket NumberNo. 5364.,5364.
Citation238 F.2d 606
PartiesOKLAHOMA REAL ESTATE COMMISSION, John B. Martin, Oliver Black, Charles E. Young and J. T. Frizzell, Appellants, v. NATIONAL BUSINESS AND PROPERTY EXCHANGE, Inc., a California corporation; and National Business and Property Exchange, Inc., a Delaware corporation, Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Edward E. Soule, Oklahoma City, Okl. (Roy C. Lytle, David C. Johnston, Oklahoma City, Okl., Mac Q. Williamson, Atty. Gen., of Oklahoma, and James C. Harkin, Asst. Atty. Gen., of Oklahoma, were with him on the brief), for appellants.

John B. Dudley, Jr., Oklahoma City, Okl. (Ralph B. Herzog, Beverly Hills, Cal., and Dudley, Duvall & Dudley, Oklahoma City, Okl., were with them on the brief), for appellees.

Before BRATTON, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges.

BRATTON, Chief Judge.

National Business and Property Exchange, Inc., a corporation organized under the laws of California, brought this action against Oklahoma Real Estate Commission, hereinafter referred to as the Commission. The action was one for a declaratory judgment determining that plaintiff was not a real estate broker and that its agents and representatives were not real estate brokers or salesmen subject to the provisions of the Oklahoma Real Estate License Act, as amended, 59 O.S.1951 §§ 831-857, sometimes hereinafter referred to as the Act. Judgment was entered for plaintiff. On appeal, it was held that in the then posture of the case the State of Oklahoma was the real party defendant in interest. The cause was remanded with directions to vacate the judgment and dismiss the action, not on the merits but for lack of jurisdiction and without prejudice to the right of plaintiff to apply for permission to amend its complaint and make additional parties defendant. Oklahoma Real Estate Commission v. National Business and Property Exchange, 10 Cir., 229 F.2d 205. Thereafter, by amendment to the complaint, National Business and Property Exchange, Inc., a corporation organized under the laws of Delaware, was joined as a party plaintiff, and John B. Martin, Oliver Black, and Charles E. Young, members of the Commission, and J. T. Frizzell, secretary thereof, were joined as parties defendant. Apparently the relationship between the two corporate plaintiffs was merely that of predecessor and successor in interest and for convenience reference will be made to them in the singular. In the amendment to the complaint, it was pleaded among other things that the individual defendants acted unreasonably, arbitrarily, and capriciously in asserting that plaintiff was subject to the provisions of the Act and was unlawfully conducting its business in Oklahoma without first complying with the provisions of the Act. By motions to dismiss and answers, the defendants pleaded lack of federal jurisdiction of the action; pleaded that the State of Oklahoma was the real party defendant in interest and therefore the action was prohibited by the Eleventh Amendment to the Constitution of the United States; pleaded that there was pending in the district court of Oklahoma County an action instituted by the Commission against National Business and Property Exchange, Inc., and others, in which all of the issues herein could and would be determined; and pleaded that this action should not be entertained pending the conclusion of the action in the state court.

The court in its judgment determined that plaintiff was not a real estate broker and that its agents and representatives were not real estate salesmen or brokers, within the purview of the Act; further determined that plaintiff was not conducting its business in violation of the Act; further determined that the individual defendants, as members of the Commission and as secretary thereof, respectively, had acted and were acting in an arbitrary and capricious manner beyond the borders of the Act in asserting that plaintiff was subject to the provisions of such Act; and enjoined the defendants until the further order of the court from prosecuting the action in the state court or from otherwise interfering with plaintiff in the operation of its business.

The Real Estate License Act of Oklahoma was enacted into law in 1949. Section 2 thereof, 59 O.S.1951 § 832, defines the term "`real estate broker'" to include anyone engaging in or holding himself out as engaging in or carrying on the business of "selling, exchanging, purchasing, renting, leasing or negotiating the sale, or exchange, purchase, rental or leasing of any real estate for others for fees, commissions or other valuable considerations." Section 3, 59 O.S.1951 § 833, defines the term "`real estate salesman'" to mean and include any person "employed or engaged by or on behalf of a real estate broker to do or to deal in any act, acts, or transactions set out, or comprehended by the definition of a real estate broker in Section 2 of this Act for compensation or otherwise." Section 6, 59 O.S.1951 § 836, requires anyone engaged in the business of a real estate broker as defined by the Act to obtain a license as such. And section 7, 59 O.S.1951 § 837, requires a real estate salesman, as defined by the Act, to obtain a license as such. In 1953, section 2 of the Act was amended to include in the definition of a real estate broker anyone who "lists" real estate or the improvements thereon for sale, 59 O.S.1953 Supp. § 832. And in 1953, the Act was further amended to provide that no person, corporation, or association engaged within the state in the business of acting in the capacity of real estate broker or real estate salesman "shall bring or maintain an action in any court in this State for the recovery of compensation for services rendered in the listing, buying, selling, exchanging, leasing or renting of any real estate without alleging and proving that such person, corporation, or association was a licensed real estate broker or salesman at the time when the alleged cause of action arose." 59 O.S.1953 Supp. § 855.

Plaintiff publishes and circulates monthly in interstate commerce in Oklahoma and elsewhere under a second class mail permit a publication denominated "National Buyers' Guide". In addition to articles of interest concerning various sections of the United States, the publication carries extensive advertisements for the sale or exchange of farms, ranches, businesses, and income properties in all sections of the United States. The cost of advertising in the publication is based solely upon a fixed charge for the space requested. The charge bears no relationship to the value of the business or property and is not contingent upon a sale being made. The cost of the advertising space is payable regardless of whether the business or property is sold. Copies of the publication are furnished free of charge to real estate brokers throughout the United States, including Oklahoma, upon written application therefor. Plaintiff also compiles, publishes and distributes to individuals, firms, or corporations who have purchased advertising space in "National Buyers' Guide" a compilation denominated "Confidential Report of Buyers". This compilation is distributed to plaintiff's advertisers twice monthly. It is compiled from the names of individuals, firms, and corporations who have responded to plaintiff's national advertising program. And plaintiff carries on extensive advertising campaigns in order to...

To continue reading

Request your trial
4 cases
  • Kansas Bd. of Regents v. Pittsburg State University Chapter of Kansas-National Educ. Assn., KANSAS-NATIONAL
    • United States
    • Kansas Supreme Court
    • July 15, 1983
    ...precedent to administrative action. Oliver v. Spitz, 76 Nev. 5, 348 P.2d 158 (1960); Oklahoma Real Estate Commission v. National Business & Property Exchange, 238 F.2d 606 (10th Cir.1956); Utah Hotel Co. v. Industrial Commission , 151 P.2d 467 (Utah 1944). Indeed, NRS 288.110 charges the bo......
  • Kopp v. State
    • United States
    • Idaho Supreme Court
    • May 23, 1979
    ...clothed with power to construe it as a necessary precedent to administrative action. Oklahoma Real Estate Commission v. National Business & Property Exchange, 238 F.2d 606, 610 (10th Cir. 1956); Clark County School District v. Local Government Employee Management Relations Board, 90 Nev. 44......
  • Western Sur. Co. v. Childers
    • United States
    • Oklahoma Supreme Court
    • March 6, 1962
    ...was rejected by the Commission because it showed a $1000.00 limitation on the bond. In Oklahoma Real Estate Commission v. National Business & Property Exchange, Inc., 10 Cir., 238 F.2d 606, the Court 'It is the general rule that an agency charged with the duty of administering an act is imp......
  • Clark County School Dist. v. Local Government Emp. Management Relations Bd., s. 7470 and 7597
    • United States
    • Nevada Supreme Court
    • December 23, 1974
    ...precedent to administrative action. Oliver v. Spitz, 76 Nev. 5, 348 P.2d 158 (1960); Oklahoma Real Estate Commission v. National Business & Property Exchange,238 F.2d 606 (10th Cir. 1956); Utah Hotel Co. v. Industrial Commission,107 Utah 24, 151 P.2d 467 (1944). Indeed, NRS 288.110 charges ......
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT