Upon original consideration of this cause the authorities bearing upon the constitutionality of statutes like the one here involved were carefully read and considered, and we have endeavored in the majority opinion to plainly state our views and the reasons underlying our conclusion.
The application for rehearing presents nothing new and ordinarily would call for no response. And were it not for the complaint of counsel for appellee that the opinion misconceives his insistence and places him in a false light of argument we would let the case go without further comment. But of course we are anxious that there be no misstatement of the position of counsel and of consequence feel that a brief response is appropriate.
It is urged on this application that we fell into grievous error wherein the opinion states, "counsel for appellee insists that the real estate business is innocent and harmless and not subject to the police power of the State * * *". And further that counsel, "* * * base their argument on the theory that real estate business is not subject to regulation." In supplemental brief counsel for appellee (p. 7) stated: "If the business is an innocent and innocuous business there is nothing in its nature that in any way endangers the public health, safety or morals, and there is no field of operation for the police power of the state." And we had understood the argument against the statute was based upon the theory thus announced.
The argument on this application is that the excerpt above noted from the opinion is a misconception of the position of counsel and an unintentional erroneous statement thereof. The brief continues: "If we insisted that the real estate business was not subject to legislative regulation, we would advance an unsound proposition, and we do not like to be put in that light. The court is not called upon to determine in this case whether the real estate business is or is not subject to legislative regulation. For the purpose at hand we concede that it is, but that is far short of conceding that people may be excluded from engaging in that business until they convince the Alabama Real Estate Commission that they are competent to transact it in the public interest." Counsel further states in brief: "We did not, we think, assert that the real estate business is not subject to the police power of the State or legislative regulation, but what we did attempt to make clear is the difference between regulating the business and prohibiting people from engaging in the business."
We have thus stated the position of counsel upon petition for rehearing that *Page 460 there may be no misunderstanding and to remove all doubt of misconception.
It may be due to our own shortcomings, but we find difficulty in following the argument to the distinction sought to be made. As we view it the real estate business is carried on, of course, by human agency, and those who are engaged in the business act as agents and in a fiduciary capacity. And a law requiring that such agents meet a test for competency and integrity of character to safeguard the public interest is, in our opinion, nothing more nor less than a regulatory statute and comes within the regulatory influence of the police power of the State. There is not, however, and could not be, any general prohibition against engaging in the real estate business. And perhaps clearly enough no such legislation has ever been attempted. But, as the majority opinion notes, numerous states have enacted laws placing certain regulatory restrictions upon those who engage in the real estate business which statutes have been upheld under the police power by the overwhelming weight of judicial authority which we have here approved. This is regulation — not prohibition. But we forego further discussion.
We merely intended in this response to make sure there has been no misconception of argument of counsel and to more accurately state his position in brief.
The application is due to be denied.
Application overruled.
BOULDIN, FOSTER, and LIVINGSTON, JJ., concur.