Opinion
17917.
ARGUED JUNE 9, 1952.
DECIDED JULY 14, 1952. REHEARING DENIED JULY 28, 1952.
Injunction. Before Judge Atkinson. Chatham Superior Court. April 18, 1952.
Myrick Myrick and Casper Wiseman, for plaintiffs in error.
Eugene Cook, Attorney-General, R. L. Addleton, Assistant Attorney-General, Hugh Carney and Sylvan Garfunkel, contra.
1. In every case of conflict between Chapter 84-14 of the Code and any previous act of the legislature from which the Code was taken, the Code, being the last act of the legislature, must prevail over the previous act.
2. By Code §§ 84-1402, 84-1403, the provisions of the entire chapter are expressly made inapplicable to sales by the owner of his own land, irrespective of the existence of encumbrances thereon. Therefore, the Georgia Real Estate Commission is wholly without authority of law to interfere in any manner with such sale by the owner.
3. The petition of the Georgia Real Estate Commission alleges that the defendants, as owners, have subdivided and are selling more than 20 lots in one tract without first securing a license from the petitioners, and prays that the defendants be enjoined. The evidence at the interlocutory hearing showed that the defendants were selling their own land on which another held a security deed, and that they had no license from the petitioners. It was an abuse of discretion to grant the interlocutory injunction which the judgment here excepted to.
No. 17917. ARGUED JUNE 9, 1952 — DECIDED JULY 14, 1952 — REHEARING DENIED JULY 28, 1952.
This suit is brought in the name of the Georgia Real Estate Commission, alleging that the commission is composed of Leo F. Griffin, Harry F. Boyce and Lum C. Pitts. The petition alleges, in substance, that Johnnie Gray and Juanita Gray, the defendants, are engaged in the real-estate business in Chatham County, trading under the name of Realty Sales, and maintaining an office and place of business for the purpose of selling real estate in a subdivision known as Riverside Manor, located on Whitemarsh Island at the corner of U.S. Highway 80 and Oakland Island Boulevard on the public highway from Savannah to Savannah Beach. In paragraph 3 it alleges that the defendants are selling and attempting to sell lots in said subdivision which are owned by the defendants, and that the subdivision contains 68 lots. It further alleges: that the defendants have employed salesmen and saleswomen, paying them a weekly salary to negotiate sales of said lots; that the defendants are conducting the real-estate business in violation of the laws governing the sale of real estate, requiring that they obtain a license from the Georgia Real Estate Commission to conduct such business; that the defendants are advertising said lots for sale by signs and in newspapers and are maintaining on said subdivision an office building, a place of business, without first obtaining a license, all in violation of the laws governing the sale of real estate; that the defendants have also mailed numerous letters advertising such sales, and their conduct and that of their employees in thus advertising and selling lots in the subdivision constitutes a general nuisance, endangering the public health, in that they have not obtained a license from the commission so that the public will be protected from unscrupulous persons engaged in the selling of real estate; that the subdivision has never been approved by the petitioners as required by law; that the petitioners have no adequate remedy at law; and that, if the defendants are permitted to continue their operation, the health of those who purchase lots in said subdivision will be endangered and such activities will constitute a general nuisance. The prayers were that the defendants, their agents and employees be enjoined from offering for sale or selling any lots in the subdivision. An amendment thereto alleges that the subdivision, which is the subject matter of this suit, has not been approved by the Board of County Commissioners of Chatham County, as is required by law.
To the petition as amended the defendants filed general and special demurrers. Subject to the demurrers they filed an answer, in which they admit that they are selling lots in a subdivision known as Riverside; that the subdivision existed when the defendants acquired it, but they deny that the subdivision contains 68 lots, that they have employed salesmen or saleswomen, paying them weekly salaries to negotiate sales of lots in the subdivision, and that they are violating any law of the State, or that they are required to obtain a license from the Georgia Real Estate Commission inasmuch as they are selling only their own property. They deny that they are advertising lots for sale, but admit that they are advertising home sites for sale. The answer further alleges that one of the letters attached to the petition as exhibits, purported to have been sent out by the defendants, was sent through the mistake of a letter shop in Savannah, and they were unaware of the context of the letter until it had already been sent out. The answer admits that the other letters were sent out under their direction, but denies that they refer to the subdivision which is the subject matter of this suit, and denies that any of the acts alleged constitutes a general nuisance, and alleges that, if they were guilty of all the acts alleged in the petition, this would not constitute a general nuisance. The answer further alleges that the petitioners have adopted a remedy at law to stop the defendant's activities by instituting criminal proceedings in Chatham County, which criminal proceedings are still pending.
The evidence at the interlocutory hearing showed that Gray had purchased the property from a Mr. Elder, and that the property secured a debt of Gray to Elder for $21,250 by security deed. After the execution of this security deed, a one-half undivided interest was conveyed by Johnnie Gray to Juanita Gray. After hearing considerable testimony in regard to the offering of the lots for sale, the cost thereof, and the improvements thereon and their costs, the court granted an interlocutory injunction, to which judgment the defendants here except.
The following matters might constitute an insuperable barrier to the maintenance of this action, to wit: (1) is the commission a legal entity authorized by law to sue as such; (2) do the individual members of the commission have such interest in the subject matter as would entitle them to sue; (3) is the penalty for failure to procure a license as fixed by the act, which is the denial of a right to sue for compensation, the sole penalty allowed by law for such violations; and (4) is the criminal prosecution which is already pending and which seems to be maintainable ( Camp v. State, 171 Ga. 25, 154 S.E. 436) an adequate remedy at law? However, we prefer to pass by these questions without any decision thereon in order to reach and decide the main and most important question involved, which is whether or not the owner of real estate is required by law to obtain a license from the Georgia Real Estate Commission before he is allowed to sell his own land for a legitimate and lawful purpose.
The law establishing the Real Estate Commission, defining its duties and conferring upon it licensing power, was created by acts of the General Assembly (Ga. L. 1925, p 325; 1927, p. 307; 1929, p. 316), codified as Chapter 84-14 of the Code of 1933. Subsequent amendments of the law in 1931, 1941, 1943, 1949, and 1950 are irrelevant to any matters involved in the instant suit, Code §§ 84-1402, 84-1403 being the pertinent sections in the present case. Opposing counsel have sharply differed on whether in cases of conflict the original acts or the official Code must control. Counsel for the commission, relying upon the decision in Norris v. McDaniel, 207 Ga. 232 ( 60 S.E.2d 329), contend that in case of such conflict the original acts from which the Code was taken must control. We point out that in that case all the Justices did not concur, and hence the decision is not a binding precedent. Counsel for the defendants cite and rely upon the decision in Sirota v. Kay Homes, 208 Ga. 113 ( 65 S.E.2d 597), which has the concurrence of all the Justices and is a binding precedent. That decision squarely held that in case of conflict, the Code section, having been subsequently enacted by the legislature, constitutes a repeal by implication of any existing act which is irreconcilable therewith. We now reassert that ruling and apply it in the instant case, and refuse to go back of the Code of 1933 to consider any conflicting provisions of the acts from which the Code was taken.
Counsel for the commission contend, and the judgment complained of holds, that, in view of the fact that the defendants held only an equity of redemption in the land here involved because of the outstanding security deed which conveyed title to another for the purpose of securing a debt, these defendants were not "bona fide fee-simple holders," which, under Code § 84-1402, would relieve them of the necessity of procuring a license from the commission. If that position is sound and if, because of the existence of the security deed, the owners of the equity in the land can not be treated as the owners thereof, then the grantee of the security deed was the owner, and these defendants would occupy the position of sellers for the owner. If that be the factual status, then the first line of Code § 84-1402, defining the term "real estate broker," becomes relevant and material. It is there declared that, whenever used anywhere in this chapter, "real estate broker" means any person, firm, or corporation who "for another and for a fee, commission or other valuable consideration" sells, buys, rents, etc., real estate. Certainly it can not be contended that these defendants "for another and for a fee, commission or other valuable consideration" are selling the land here involved. Thus it is demonstrated that, if the defendants are not the owners of the land in question, they are not "real estate brokers" and have not violated the law relating thereto. However, the provisions of Code § 84-1403 unmistakably demonstrate that the legislature did not intend, by the use of the words "bona fide fee-simple holder" in Code § 84-1402, to require that the owner of land must hold the unencumbered title in order to be allowed to sell the same without securing a license from the Real Estate Commission authorizing him to do so. The language in Code § 84-1403 is comprehensive, unambiguous, and clearly states as follows: "The provisions of this Chapter shall not apply to any person, firm or corporation, who, as owner or lessor, shall perform any of the acts aforesaid with reference to property owned by them." The second and third paragraphs of the Constitution would forbid destruction, taking, or impairing private property by any State bureau under any pretended legislative powers. The Constitution declares "protection of person and property is the paramount duty of government, and shall be impartial and complete," and "no person shall be deprived of life, liberty, or property, except by due process of law." The unshackled right to sell one's own property for a lawful use is within itself property protected by the Constitution and is beyond the reach of legislative impairment. With this constitutional safeguard of private property in mind, it is not difficult to understand that the legislature intended to exempt the owner regardless of any encumbrance that he might have upon his land from any of the provisions of the law applicable to brokers and salesmen of real estate, and this legislative intent is expressed is unmistakable terms in the foregoing quotation from Code § 84-1403.
The allegations in the present amended petition illustrate the perils to the owners of private property if they were required under the law to secure a license from this commission before selling their land. The petition of the commission alleged that the health of the purchasers of these lots will be injured unless the owners are required to obtain a license from the commission before selling the same. No purchaser of lots is complaining here; and even if, in spite of our recording statute, purchasers of land in Georgia might at some time be defrauded by the owner-seller, it is infinitely better that he endure such injury than that the liberties of free men be made dependent upon the whim of this governmental commission, which pretends to possess superior wisdom in the safeguard and protection of free men in the purchase and sale of private property that in no wise affects the public interest.
This commission further alleges by amendment that it is entitled to the relief sought because these defendants violated a zoning law in failing to obtain permission from the authorities designated by law to administer it. Such allegations amount to an open attempt to usurp the functions and powers of officials designated by the zoning law to administer and enforce it. Of course, such allegations constitute no basis for the relief sought here, but they illustrate the extent to which governmental agencies will sometimes go in claiming powers to invade the sacred constitutional rights of individuals. We unhesitatingly hold that the Georgia Real Estate Commission is wholly without power to require the owner of land to procure a license before selling the same or to otherwise interfere with the complete freedom of such owner in the sale of his own land.
Because of arguments advanced by counsel for the commission, we think it well to discuss that portion of Code § 84-1402 dealing with subdividing a tract of land into 20 or more lots or offering for sale a tract already subdivided into 20 or more lots where the same is offered for sale through salesmen regularly or occasionally employed and paid salaries or commissions. In the first place, from what has been said above this provision could not refer to the owners of such land; and, in the second place, just preceding this provision, in the same section, it declares "provided however this provision shall not be construed to include the sale or subdivision into lots by the bona fide fee-simple holder of any tract or parcel of land." Immediately following the quoted language is a semicolon, then "also any person, firm, or corporation subdividing a tract of land into 20 or more lots," etc. The section will bear the construction that the reference to 20 or more lots comes under a preceding sentence, which declares that the provision of the section shall not be construed to include subdivisions by bona fide fee-simple holders, and, hence, shall not include subdivisions of 20 or more lots by them. Such construction would harmonize the overall intent of the law dealing with the subject, and with the unqualified declaration in Code § 84-1403 that the provisions of the entire chapter shall not apply to an owner or lessor who performs any of the acts described in the chapter.
From what has been said, the interlocutory injunction complained of is contrary to the law and the evidence, and the court erred in granting the same.
Judgment reversed. All the Justices concur, except Atkinson, P.J., not participating. Head, J., concurs in the judgment only.