Russo, In re
| Decision Date | 08 May 1958 |
| Citation | 107 Ohio App. 238,150 N.E.2d 327 |
| Parties | , 78 Ohio Law Abs. 439, 8 O.O.2d 173 In re RUSSO. In the Matter of the Order of the State Board of Real Estate Examiners Denying Applicant, Nick Russo, Admission to an Examination for a Broker's License. |
| Court | Ohio Court of Appeals |
Lawrence & Bates, Cleveland, for appellant.
William Saxbe, Atty. Gen. of Ohio, Joseph A. Marchese, Asst. Atty. Gen., for appellee.
This case is appealed to this court on questions of law from a judgment of the Court of Common Pleas in favor of the Board of Real Estate Examiners of the State of Ohio and against the appellant, Nick Russo, who was denied admission to an examination for a broker's license.
The case was submitted upon an agreed statement of facts, the substance of which sets forth that the appellant attended Griswold Institute of Cleveland, Ohio, and received a passing grade in each of two separate real estate courses not taken concurrently; that Griswold Institute is not a college or university nor is it approved by the Department of Education as is required by Section 4735.07 of the Revised Code. In the statement of facts, the appellant lays no claim to any previous experience of any kind whatsoever in the real estate business, but on the contrary, relies solely upon educational qualifications.
The sole question presented is whether Section 4735.07 of the Revised Code, as amended September 20, 1955, is constitutional. It is the claim of the appellant that the amendment is unconstitutional. The relevant parts of said amendment read as follows:
'If the state board of real estate examiners is satisfied that the applicant for a broker's license * * * has had at least one year's experience full time in real estate business or service, or has been associated as a real estate salesman with a licensed real estate broker for at least one year and has had sufficient experience as a licensed salesman to the satisfaction of the board, to qualify him for the broker's examination, or in lieu of such experience or service, furnished a certificate that he has received a passing grade in each of two separate real estate courses approved by the state board of real estate examiners, not taken concurrently, in a college or university approved by the department of education, or has had other real estate experience equivalent thereto at the discretion of the board * * * it shall admit the applicant * * * to an examination which shall be conducted under the rules prescribed by the board. * * *'.
It will be observed that the statute as amended provides the following alternative methods to qualify for a broker's examination: 1) that the applicant has had at least one year's experience full time in real estate business or service, 2) has been associated as a real estate salesman with a licensed real estate broker for at least one year and has had sufficient experience as a licensed salesman to the satisfaction of the board to qualify him for the broker's examination, 3) has had other real estate experience equivalent thereto at the discretion of the board, and 4) in lieu of such experience or service, has furnished a certificate that he has received a passing grade in each of two separate real estate courses approved by the state board of real estate examiners, not taken concurrently, in a college or university approved by the department of education.
The Griswold Institute is not a party to this action, consequently, any rights or claims of that institution are not before this court for consideration.
The constitutionality of the statute is raised by the appellant who challenges the right of the General Assembly to impose a condition that an applicant for a broker's license who is lacking in experience required by statute must, in lieu thereof, take two separate real estate courses, approved by the Board of Examiners, in a college or university approved by the department of education.
It is the claim of the appellant, as set forth in argument and by way of brief, that the statute is vulnerable to constitutional objections, both federal and state, in that it violates clauses with respect to protection of property, the equal protection of the laws and the fundamental rights and privileges of the people and also that it is not uniform in operation and application.
The appellant further contends that no other state in the United States has such a requirement.
As to this latter proposition, we agree with Judge Corrigan of the Court of Common Pleas, who sets forth in his memorandum opinion filed in this case, that in the State of Michigan the statute has no provision that allows the applicant to take real estate courses at any type of educational institution in lieu of the required experience and further that in the State of New York, it is provided by statute that real estate courses approved by the Secretary of State, are recognized, not in lieu of experience, but as a means of shortening the length of actual experience required from two years to one year (See New York Real Property Law, McKinney's Consol.Laws, c. 50, Sec. 441). The trial judge further states correctly, we think, that the Ohio Legislature apparently saw fit to enact a more lenient statute under which a person totally lacking in actual experience could apply for a real estate broker's license providing he could submit satisfactory proof that he possessed the necessary educational requirements as defined by the statute.
The statute in question falls into that area of legislation generally understood to be within the police power of the state. It is fundamental that the authority of a state to enact such legislation under its police power is limited by the constitutional requirement of due process of law.
However, in considering legislation enacted under the police power, courts cannot consider the wisdom of the particular statute or its suitability or whether another method would have been more satisfactory to accomplish the desired purpose. Such matters are questions of policy into which courts will not inquire in resolving the problem of whether the legislation in question has encroached upon the various rights guaranteed to individuals by the state and federal constitutions. This was put quite clearly and succinctly by Davis, Judge, in Phillips v. State, 77 Ohio St. 214, 217, 82 N.E. 1064, 1065, when he said:
(Emphasis added.)
And in the case of State ex rel. Bowman v. Board of Com'rs, 124 Ohio St. 174, 177 N.E. 271, syllabus 3, provides:
(Emphasis added.)
To the same effect, see also Sanning v. City of Cincinnati, 81 Ohio St. 142, 90 N.E. 125, 25 L.R.A.,N.S., 686.
The first question to be answered is whether the statute is actually an exercise of...
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