State v. Spears, 5543

• Decision Date: 06 May 1953
• Docket Number: No. 5543,5543
• Citation: 57 N.M. 400,259 P.2d 356,39 A.L.R.2d 595,1953 NMSC 33
• Parties: , 39 A.L.R.2d 595 STATE v. SPEARS.
• Court: New Mexico Supreme Court

Page 356

259 P.2d 356

57 N.M. 400, 39 A.L.R.2d 595

STATE v. SPEARS.

No. 5543.

Supreme Court of New Mexico.

May 6, 1953.

Appellee's Motion for Rehearing Granted July 7, 1953.

Appellant's Motion for Rehearing Denied July 14, 1953.

Neal & Girand and Brand & Cowan, Hobbs, for appellant.

Joe L. Martinez, Atty. Gen., and Hilario Rubio, Asst. Atty. Gen. (Richard H. Robinson, Atty. Gen., Fred M. Standley, Asst. Atty. Gen., on rehearing), for appellee.

LUJAN, Justice.

From a judgment overruling his motion to quash the information filed against him by the State for engaging in business as real estate broker without first obtaining a license, in violation of Chapter 224, Session Laws of 1951, the defendant (appellant) prosecutes this appeal.

The case was submitted to the court upon the following stipulated facts:

'That Glin Spears, the defendant in the above styled and numbered cause, is a person of good moral character and from the standpoint of his reputation and character qualified to obtain a real estate license in the State of New Mexico.

'That the defendant, Glin Spears, has engaged in the real estate business in the City of Hobbs, Lea County, New Mexico from March of 1944 until on or about the 20th day of February, 1952.

'That said Glin Spears has never at any time during the period he has been engaged in the real estate business had a real estate broker's license in the State of New Mexico.'

The issues raised by this appeal are the constitutionality of the above Act, the pertinent provisions of which provides:

Sec. 8. 'Licenses shall be granted only to persons who are trustworthy and competent to transact the business of a real estate broker or real estate salesman in such manner as to safeguard the interests of the public and only after satisfactory proof has been presented to the board. Every applicant for a license as a real estate broker shall be of the age of twenty-one years or over, and a citizen of the United States. Broker's licenses may be issued to partnerships, associations or corporations, provided at least one member or officer or employee thereof meets all requirements of this Act for an individual broker, and provided further that all members, officers or employees, who actively engage in the real estate business first secure either a broker's license or salesman's license.'

Sec. 9. 'All applications for license to act as real estate brokers shall be made in writing to the new Mexico Real Estate Board and shall contain such data and information as may be required upon a form to be prescribed and furnished by the board. Such application shall be accompanied by: (a) the recommendation of two reputable citizens who own real estate in the county in which the applicant resides or has his place of business, which recommendation shall certify that the applicant is of good moral character, honest and trustworthy; (b) the annual license fee prescribed by the board, which shall not be refunded in any event; (c) any applicant required to take the written examination herein prescribed for the issuance of a license shall pay an examination fee of Five Dollars ($5.00); provided that any applicant who fails to pass the examination for a license may apply for another examination within one (1) year and shall be given a second examination upon payment of a further fee of Five Dollars ($5.00), and without being required to pay the initial annual license fee specified in sub-section (b) of this section.

'In addition to proof of honesty, trust-worthiness and good reputation of any applicant for a license as herein set forth, the applicant shall submit to a reasonable written examination to be conducted by the board of such scope as the board shall prescribe to determine his qualifications to serve the public as a licensee under this Act.

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'The board shall furnish to each applicant for examination a list of the subjects upon which the applicant is to be prepared, and said list shall be forwarded to the said applicants at least one (1) month prior to the date set for the examination.

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* * *

'Upon the passage and approval of this Act a license as a real estate broker shall be issued by the board, without examination, to any one who is presently licensed under the provisions of Chapter 177 of the Session Laws of 1949; provided further that each of said brokers who have paid the license fees required by Chapter 177 of the Session Laws of 1949 shall not be required to pay any further license fee for the year 1951.'

Sec. 12. '* * * The decision of the board in denying, suspending or revoking any license under this Act shall be subject to review; and any party aggrieved by such decision of this board may within ten days from the date of said decision appeal therefrom to the District Court of the State of New Mexico in and for the County in which the person affected by such decision resides or has his place of business by serving upon the board a notice of such appeal. Upon the hearing of such appeal, which shall be tried do novo, the burden of proof shall lie upon the appellant and the court shall receive and consider any pertinent evidence, oral or documentary, concerning the action of the board from which the appeal is taken. Appeals to the Supreme Court shall lie as in other causes.'

The defendant contends that the Act is unconstitutional and void, as a delegation to an administrative board of legislative power, which the State Constitution, article 4, section 1, declares 'shall be vested in a senate and house of representatives'. In our opinion this contention is untenable.

It is elementary that, while the Legislature may not delegate its powers to make laws, it may vest in administrative officers and bodies a large measure of discretionary authority especially to make rules and regulations relating to the enforcement of the law. Michigan Cent. R. Co. v. Powers, 201 U.S. 246, 26 S.Ct. 459, 50 L.Ed. 744; Leser v. Lowenstein, 129 Md. 244, 98 A. 712.

The constitutionality of a law is to be determined by its provisions, and not by the manner in which it may be administered; and, unless it conflicts with the Federal or State Constitutions, the law is valid. Arnold v. Board of Barber Examiners, 45 N.M. 57, 109 P.2d 779. The law here in question provides for the appointment of a board, made up of persons experienced in the real estate business, to which the duties imposed are intrusted for performance, and to which is committed the power to make and enforce any and all rules and regulations to carry out the provisions of the act and of prescribing such reasonable written examinations of such scope as to determine the qualifications of applicants, and it must be presumed that the board will exercise fairly and impartially the powers conferred.

'In order that a court may be justified in holding a statute unconstitutional as a delegation of legislative power, it must appear that the power involved is purely legislative in nature--that is, one appertaining exclusively to the legislative department. There are many powers so far legislative that they may properly be exercised by the legislature, but which may nevertheless be delegated, since the legislature may delegate any technically nonlegislative power which it may itself lawfully exercise. While it cannot abdicate its general law-making powers, it may authorize others to do things which it might properly do, but which it cannot conveniently or advantageously perform. * * *' 11 Am.Jur. Section 214, page 923.

The constitutionality of statutory provisions authorizing executive or administrative officers or boards to formulate rules and regulations to make the statute effective for the public purpose designed has generally been assumed or conceded without question. But in a number of well considered cases it has been distinctly held that where a valid statute complete in itself enacts the general outlines of a governmental scheme, policy, or purpose, and confers upon officials charged with the duty of assisting in administering the law to make, within designated limitations to judicial review, rules and regulations, or to ascertain facts, upon which the statute by its own terms operates in carrying out the legislative purpose, such authority is not an unconstitutional delegation of legislative power. See State v. Chicago, M. & P. Ry. Co., 38 Minn. 281, 37 N.W. 782; Union Bridge Co. v. United States, 204 U.S. 364, 27 S.Ct. 367, 51 L.Ed. 523.

If the regulations or actions of an official or board authorized by statute do not in effect determine what the law shall be, or do not involve the exercise of primary and independent discretion, but only determine with defined limits, and subject to review, some fact upon which the law by its own terms operates, such regulation or action is administrative, and not legislative, in its nature and effect. The effect and operation of a statute may be made conditional or contingent upon the ascertainment of particular facts, and may be made to depend upon a subsequent event. This principle has been applied in regulations relating to occupations, trades, liquor, schools, and many other public purposes. See Fillmore Union High School Dist. of Ventura County v. Cobb, 5 Cal.2d 26, 53 P.2d 349; Chambers v. McCollum, 47 Idaho 74, 272 P. 707; State ex rel. Hughes v. Milhollan, 50 N.D. 184, 195 N.W. 292, State v. Gerhardt, 145 Ind. 439, 44 N.E. 469, 33 L.R.A. 313; Clark v. State, 169 Miss. 369, 152 So. 820.

In State v. Briggs, 45 Or. 366, 77 P. 750, 752, 78 P. 361, the validity of an act authorizing the appointment of a state barber's board, with power to prescribe the qualifications of barbers, was upheld. The court stated that 'the provision of the act * * * vesting authority in the board of examiners to prescribe the qualifications of a barber, is not a delegation of legislative power.' The act provides for the appointment of a board of examiners; defines the powers and duties of the board, among which is...