Rawles v. Jenkins

• Decision Date: 10 November 1925
• Citation: 212 Ky. 287
• Parties: Rawles v. Jenkins, et al.
• Court: United States State Supreme Court — District of Kentucky

212 Ky. 287

Rawles v. Jenkins, et al.

Court of Appeals of Kentucky. Chancery Branch, First Division.

Decided November 10, 1925.

1. Constitutional Law — Constitutional Right to Engage in Business or Occupation Subject to Regulations and Restraints Essential to Preservation of Public Weal. — The right to engage in any business or occupation not injurious to the public weal, as conferred by Constitution, section 1, subdivision 5, is not absolute, but is subject to such reasonable regulations and restraints as are essential to the preservation of the health, safety, and welfare of the state.

2. Licenses — State May Regulate Occupations or Businesses Affected with Public Interest or of such Character that, if Unrestrained, will Result in Injuries to Public Weal. — The state may regulate occupations or businesses that are affected with a public interest or which are of such character that, if unrestrained, will result in consequences injurious to the public weal.

3. Licenses — State Exceeds Police Power, when it Requires Moral Qualifications to Engage or Continue in Business no More Dangerous to Public than Any Other Ordinary Occupation of Life. — The state exceeds the limits of its police power, when it undertakes to require moral qualifications of a person who wishes to engage or continue in a business which, as usually conducted, is no more dangerous to the public than any other ordinary occupation of life.

4. Constitutional Law — Licenses — Statute, so Far as it Makes Obtainment or Retention of Licenses of Real Estate Brokers or Salesmen Depend Upon Moral Fitness of Licensee, Held Unconstitutional — "Liberty." — Acts 1924, c. 138, so far as it makes the obtainment or retention of a license to transact business of a real estate broker or a real estate salesman depend on the moral fitness of the applicant or licensee, is unconstitutional, as violative of Constitution of Kentucky, section 1, subdivisions 1, 5; the word "liberties," as used in such constitutional provisions, including not only the right of a citizen to earn his livelihood by any lawful calling, but the right of acquiring property, including the right to engage in any business or occupation that is not injurious to the public weal.

Appeal from Jefferson Circuit Court

BURWELL K. MARSHALL and W.T. BASKETT for appellant.

ALLEN P. DODD for appellees.

OPINION OF THE COURT BY JUDGE CLAY.

Reversing.

The 1924 license of E.I. Rawles, an employee of the real estate firm of McAlister & Company, was revoked, and his application for a license for the year 1925 was refused by the Kentucky Real Estate Commission.

In this action against I. Sidney Jenkins, Ben A. Adams, and R.A. Elam, composing the Kentucky Real Estate Commission, and the Kentucky Real Estate Commission, Rawles sought an injunction requiring the defendants to set aside the order revoking the 1924 license and to grant him a license for the year 1925. As the year 1924 had expired, the relief as to the license for that year was denied on the ground that the case was a moot one. The relief asked for the year 1925 was denied on the ground that the evidence before the commission justified its refusal to grant the license.

The application for the 1925 license was made pursuant to the provisions of chapter 138, Acts 1924. The act requires every real estate broker or real estate salesman in any city of the first or second class to obtain a license from the Kentucky Real Estate Commission, which is composed of three members appointed by the Governor.

Section 4 of the act provides:

"A license shall be granted only to persons who bear a good reputation for honesty, truthfulness and fair dealing and are competent to transact the business of a real estate broker or a real estate salesman in such a manner as to safeguard the interests of the public."

In addition to numerous other requirements section 5 provides:

"Every applicant for a real estate broker's license shall apply therefor in writing upon blanks prepared or furnished by the Kentucky Real Estate Commission.

"Such application shall be accompanied by the recommendation of at least two citizens, real estate owners, not related to the applicant, who have owned real estate for a period of one year or more, in the county in which said applicant resides, or has his place of business, which recommendation shall certify that the applicant bears a good reputation for honesty, truthfulness, fair dealing and competency, and recommending that a license be granted to the applicant."

Section 8, which deals with the suspension and revocation of licenses, is as follows:

"The commission may upon its own motion and shall upon the verified complaint in writing of any person, provided such complaint or such complaint together with evidence, documentary or otherwise, presented in connection therewith, shall make out a prima facie case, investigate the actions of any real estate broker or real estate salesman, or any person who shall assume to act in either such capacity within this state, and shall have the power to suspend or to revoke any license issued under the provisions of this act, at any time where the licensee has by false or fraudulent representation obtained a license, or where the licensee in performing or attempting to perform any of the acts mentioned herein, is deemed to be guilty of:

"(a) Making a substantial misrepresentation, or

"(b) Making any false promises of a character likely to influence, persuade or induce, or

"(c) Pursuing a continued and flagrant course of misrepresentation, or making of false promises through agents or salesmen or advertising or otherwise, or "(d) Acting for more than one party in a transaction without the knowledge of all parties for whom he acts, or

"(e) Accepting a commission or valuable consideration as a real estate salesman for the performance of any of the acts specified in this act, from any person, except his employer, who must be a licensed real estate broker, or

"(f) Representing or attempting to represent a real estate broker other than the employer, without the express knowledge and consent of the employer, or

"(g) Failing, within a reasonable time, to account for or to remit any moneys coming into his possession which belong to others, or

"(h) Being unworthy or incompetent to act as a real estate broker or salesman...