State v. Hurlock
| Decision Date | 09 May 1932 |
| Docket Number | 291 |
| Citation | 49 S.W.2d 611,185 Ark. 807 |
| Parties | STATE v. HURLOCK |
| Court | Arkansas Supreme Court |
Appeal from Benton Circuit Court; John S. Combs, Judge; reversed.
Judgment reversed and cause remanded.
Hal L. Norwood, Attorney General, and Robert F Smith, Assistant, for appellant.
A L. Smith, for appellee.
Jeff Duty, deputy prosecuting attorney for Benton County Arkansas, on May 22, 1931, filed with the justice of the peace, F. P. Galbraith, the following information, charging Butler Hurlock, M. C. Morris and John Elrod with misdemeanor: "The said Butler Hurlock, M. C. Morris and John Elrod, in the said county of Benton, in the State of Arkansas, on or about the 26th day of April, 1931, did unlawfully and wilfully fail and refuse to secure a regular valid license issued by the Arkansas Real Estate Commission authorizing the above-named parties to act as a real estate broker or brokers or real estate salesman or salesmen in the State of Arkansas, and the above-named parties assumed, advertised and did act as such real estate brokers or salesmen without having secured such valid license from the Arkansas Real Estate Commission."
On July 10 the case against appellees was tried, and the justice of the peace held the law invalid and unconstitutional and discharged the defendants. The deputy prosecuting attorney prayed an appeal to the circuit court, and the appellee, Butler Hurlock, filed a motion in the circuit court to dismiss the action, on the ground that act 148 of the Acts of 1929, as amended by act 142 of the Acts of 1931, is unconstitutional and void for the following reasons:
The circuit court dismissed the cause on the ground that the act under which appellees were prosecuted was unconstitutional and void, because said act conferred the right of individuals to appeal in behalf of the State.
Appellee's motion was sustained, and the cause dismissed because the law is unconstitutional and void, and the State prayed an appeal, which was by the court granted.
Act 148 of the Acts of 1929 and act 142 of 1931 are found in Castle's Supplement, 1931, §§ 838a to 8381.
Appellee first contends that the acts with which defendant is charged with committing do not constitute a public offense. "A public offense is any act or omission for which the law has prescribed a punishment." Crawford & Moses' Digest, § 2294.
The act provides that a person violating it shall, upon conviction, be deemed guilty of a misdemeanor, and shall be punished by a fine of not less than $ 25 and not more than $ 500, or by imprisonment for a term not to exceed six months, or by both such fine and imprisonment in the discretion of the court.
The statute, after defining felony, provides all other public offenses are misdemeanors. Crawford & Moses' Digest, § 2297.
It therefore clearly appears that the acts charged constitute a public offense, as defined by the statute.
The presumption is that an act passed by the Legislature is constitutional, and it must be so held by the courts unless it appears to be in conflict with some constitutional provision.
A statute will not be held to be invalid unless it is either expressly or impliedly forbidden by the Constitution. Bush v. Martineau, 174 Ark. 214, 295 S.W. 9; Ark. Rd. Commission v. Castetter, 180 Ark. 770, 22 S.W.2d 993; Dabbs v. State, 39 Ark. 353; Moore v. Alexander, 85 Ark. 171, 107 S.W. 395; Webb v. State, 176 Ark. 722, 3 S.W.2d 1000; Hargraves v. Solomon, 178 Ark. 11, 9 S.W.2d 797.
In discussing the police power of the State and the right of the Legislature to enact laws thereunder, this court said: "In the exercise of this power, the States have always regulated certain kinds of business, and absolutely prohibited others. The power to prohibit any business which is dangerous to public safety, health, or morals, has never been denied, and the power to regulate any business in which the public is interested is also sustained. Williams v. State, 85 Ark. 464, 108 S.W. 838, 26 L. R. A. (N. S.) 482, 122 Am. St. Rep. 47; Little Rock v. Barton, 33 Ark. 436.
It is true that the police power can only be exercised to suppress, restrain, or regulate the liberty of individual action, when such action is injurious to the public welfare.
If an act of the Legislature is neither expressly nor impliedly prohibited by some provision of the Constitution, a court cannot declare it...
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...of individual action, when such action is injurious to the public welfare." Id. at 782, 528 S.W.2d at 921 (quoting State v. Hurlock, 185 Ark. 807, 49 S.W.2d 611 (1932)). "[I)f the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that......
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