State ex rel. Clark v. Brown, 38911

• Court: United States State Supreme Court of Ohio
• Writing for the Court: ZIMMERMAN; TAFT
• Citation: 1 Ohio St.2d 121,205 N.E.2d 377,30 O.O.2d 478
• Parties: , 30 O.O.2d 478 The STATE ex rel. CLARK et al. v. BROWN, Secretary of State.
• Docket Number: No. 38911,38911
• Decision Date: 10 March 1965

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1 Ohio St.2d 121 205 N.E.2d 377, 30 O.O.2d 478 The STATE ex rel. CLARK et al.
v.
BROWN, Secretary of State. No. 38911. Supreme Court of Ohio. March 10, 1965.

[205 N.E.2d 378] Syllabus by the Court

Section 4710.02, Revised Code, forbidding any person to engage in the business of a debt-pooling company unless licensed and regulated by the legislative authority of the political subdivision in which such person operated prior to January 1, 1958, is a valid enactment not violative of the due process and equal protection clauses of the federal and state Constitutions.

IN MANDAMUS.

In this action in mandamus, originating in this court, relators seek to require respondent, the Ohio Secretary of State, to accept for filing the articles of incorporation of The Ohio Budget Counseling Service. The case is before the court on an agreed stipulation of facts. Such stipulation shows that relators prepared and submitted[205 N.E.2d 379] to respondent for filing articles of incorporation in proper form, but one of the purposes stated therein was the carrying on of the business of 'debt pooling.' Respondent declined to file such articles

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for the reason that the purpose for which such corporation was being formed is violative of Section 4710.02, Revised Code, which prohibits the business of debt pooling. ¹

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Fuhrman, Gentner & Britz and Marc Gertner, Toledo, for relators.

William B. Saxbe, Atty. Gen., and Larry G. Brake, Mansfield, for respondent.

ZIMMERMAN, Judge.

One question is raised by this action, viz., the validity of Section 4710.02, Revised Code, which prohibits the business of debt pooling unless such business was duly licensed by a political subdivision of the state prior to January 1, 1958, the effective date of the statute.

Relators base their attack on this section on two grounds. It is contended, first, that it violates the due process clauses of the Constitutions of the United States and of the state of Ohio by depriving them of their right to engage in a legitimate business and, second, that it violates the equal protection clauses of the federal and state Constitutions, because it creates an unreasonable classification by permitting those who were engaged in business prior to January 1, 1958, to continue therein and by prohibiting anyone after such date to start a new business of the same character.

As to due process, the constitutional right of every person to pursue his chosen business or occupation is not absolute or unlimited but is subject to the right of the state under the police power to regulate or prohibit such business or occupation, if it is necessary for the public welfare. Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U.S. 412, 425, 57 S.Ct. 772, 777, 81 L.Ed. 1193, 1201, 112 A.L.R. 293, 300, and Murphy v. State of California, 225 U.S. 623, 32 S.Ct. 697, 56 L.Ed. 1229, 41 L.R.A., N.S., 153.

It has been held that even though a business in and of itself may not be insidious or immoral it may still be subject to prohibition. Thus, in Booth v. People of State of Illinois, 184 U.S. 425, 429, 22 S.Ct. 425, 427, 46 L.Ed. 623, 626, the court said:

'* * * Is it true that the legislature is without power to forbid or suppress a particular kind of business, where such business, properly and honestly conducted, may not, in itself, be immoral? We think not. A calling may not in itself be immoral, and yet the tendency of what is generally or ordinarily or often done in pursuing that calling may be towards that

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which is admittedly immoral or pernicious. If, looking at all the circumstances that attend, or which may ordinarily attend, the pursuit of a particular calling, the state thinks that certain admitted evils cannot be successfully reached unless that calling be actually prohibited, the courts cannot interfere, unless, looking through mere forms and at the substance of the matter, they can say that the statute enacted professedly to protect the public morals has no real or subsantial relation to that object, but is a clear, unmistakable infringement of rights secured by the fundamental law. * * *'

Therefore, a state under its police power may prohibit a business if it finds that the conduct thereof is so inimical to the public welfare that mere regulation thereof does not go far enough. Purity Extract and [205 N.E.2d 380] Tonic Co. v. Lynch, 226 U.S. 192, 33 S.Ct. 44, 57 L.Ed. 184; Murphy v. State of California, supra, 225 U.S. 623, 32 S.Ct. 697; and Great Atlantic & Pacific Tea Co. v. Grosjean, supra, 301 U.S. 412, 57 S.Ct. 772.

Of course, the wisdom of legislation is not subject to judicial inquiry, and legislative enactments are presumptively constitutional.

'Unless the question is free from doubt, it is the duty of courts to uphold legislative acts as constitutional.' Booten v. Pinson, 77 W.Va. 412, 89 S.E. 985, L.R.A.1917A 1244.

Whether the conduct of a particular business is so related to public health, safety or welfare as to be subject to the police power and is so inimical to the public good as to require its prohibition is primarily for legislative determination. As was said in Benjamin v. City of Columbus, 167 Ohio St. 103, 146 N.E.2d 854, paragraph six of the syllabus:

'Whether an exercise of the police power does bear a real and substantial relation to the public health, safety, morals or general welfare of the public and whether it is unreasonable or arbitrary are questions which are committed in the first instance to the judgment and discretion of the legislative body, and, unless the decisions of such legislative body on those questions appear to be clearly erroneous, the courts will not invalidate them.'

That the statute prohibits a business which theretofore was regarded as a lawful enterprise is not destructive of the statute.

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In Curtiss v. City of Cleveland, 170 Ohio St. 127, 130, 163 N.E.2d 682, 685, it is stated in the course of the opinion:

'Even though legislation enacted pursuant to the police power makes...