dissenting.
From the judgment of affirmance I dissent. I think the judgment should be reversed, the verdict recovered by Weiner against Schwartz in the district court should be set aside, and final judgment should be entered here in favor of Schwartz.
Weiner’s complaint alleges that “on or about December 5, 1930, plaintiff and defendant had a conversation wherein plaintiff and defendant stated, agreed and contracted with each other that plaintiff should assist the defendant in the purchase of an apartment house,” and that “plaintiff did assist defendant in purchasing” it, that “defendant has promised to pay plaintiff for said services, but fails, neglects and refuses to pay the plaintiff. ’ ■
Schwartz’s answer couples with a general denial a further answer by way of affirmative defense, asserting that the plaintiff did not “have or obtain any license from the Secretary of State of the State of Colorado to engage in the business or capacity of real estate broker or real estate salesman” as required by law, and that he “had no right, power or authority to engage in the business or act in the. capacity of” such a broker or salesman, “nor to receive anjr compensation for any alleged services as such.” In his replication, the plaintiff admits that he did not have or obtain any such license, and alleges that “he was not engaged in the business or capacity of a real estate broker or real estate salesman,” and that “the transaction complained of was the only transaction of a like kind in which the said plaintiff participated or acted as broker or salesman,” and that “it was not necessary for plaintiff to secure a license in accordance with” the law. (Italics throughout this opinion are mine.)
While the pleadings refer specifically only to chapter *259147 of S. L. 1925, and chapter 149 of S. L. 1927, it developed on the oral argument before a department, consisting of Mr. Chief Justice Adams, Mr. Justice Burke and myself, that the above mentioned chapters must be read as amended by chapter 149 of S. L. 1929. Both sides, have now argued the case on the basis of the present state of the law, and this is particularly stressed in the brief of counsel appearing herein by leave of this court as amici curiae. My oversight in not giving" effect to the 1929 amendment, which latter is not mentioned in Mr. Justice Burke’s opinion at all, but which as I think should properly be decisive of this case, was responsible for my error.
It is at once apparent that the correct conclusion necessarily depends upon a proper interpretation and application of the act of 1925 as amended in 1929. So much of the act as is not purely administrative matter, or is. clearly not involved, will therefore be quoted verbatim in its present form:
“It shall be unlawful for any person * * * to engage in the business or capacity of real estate broker * * * in this state without first having obtained a license from the Secretary of State * * *. No person shall be granted a license until he shall have passed a satisfactory examination and shall have established that he is trustworthy and bears a good reputation for good and fair dealing and is competent to transact the business of a real estate broker * * # in such manner as to safeguard the intern ests of the public * * *.
“A real estate broker within the meaning of this act is any person * * * who for compensation or valuable consideration sells or exchanges or offers for sale or exchange, buys or offers to buy, or who negotiates the purchase or sale or exchange, of real estate, or who leases or offers to lease, or rents or offers to rent any real estate or improvements thereon for another or others * * *.
“The provisions of this Act shall not apply to any person, firm, partnership, association or corporation who as *260owner or lessor shall perform any of the acts aforesaid with reference to property owned by them; nor shall it be held to include a receiver, trustee in bankrutpcy, administrator, executor, guardian, conservator or any person selling real estate under any order of Court, or trustee selling under a Deed of Trust.
'“There shall be a Board of three members appointed by the governor which Board shall assist and advise said Secretary of State in the administration of this Act. This Board shall be known as the Beal Estate Brokers Board [the makeup and appointment of which are then provided for] * * *.
“The said Board shall conduct or cause to be conducted examinations to determine the competency of applicants for license. No license shall be issued until the application for the license shall have been reported upon favorably by a majority of the Beal Estate Brokers Board to the Secretary of State. No license shall be suspended or revoked until said Brokers [Board] shall have made its majority recommendation to the Secretary of State * * *.
“The Secretary of State and the Beal Estate Brokers Board are hereby authorized to require and procure any and all such satisfactory proof as shall be deemed desirable in reference to the truthfulness, honesty and competency of any applicant for a real estate broker’s * * * license, or if the applicant be a firm, partnership, association or corporation, of any officer or member of such applicant prior to the issuance of such license. * * *
“The Secretary of State may upon his own motion, and shall upon the verified complaint in writing of any person, investigate the actions of any real estate broker or real estate salesman or any person who shall assume to act in either such capacity within this state [then follow detailed provisions for suspension and revocation of the licenses] * * V’
It will thus be seen, from a reading of the law, that the legislature of Colorado deliberately evolved a carefully *261worded regulatory statute g-overning transactions which past history had shown to be peculiarly subject to abuse, not only at the hands of those in the permanent business of real estate broker or salesman, and those devoting a substantial part of their time thereto as a partial vocation, but also to the abuse of individuals who have not previously engaged in such a transaction. The worst abuse may come from a member of the latter class. That this was the fundamental thought of the legislature seems undeniable when we note the specific provisions enacted by three successive sessions of the General Assembly.
There seems to be no ambiguity about the language as it appears on the statute books today. It calls for neither construction nor interpretation. There is no uncertainty of meaning such as would require that we go into the history and evolution of the act. But if we did, it would merely “make assurance doubly-sure. ”
Thus the original act (S. L. 1925, page 424, §2) defined a real estate broker in terms that clearly related to those dealing with “any real estate for others as a whole or partial vocation,” distinctly implying* plural transactions ; and two acts (the smallest possible number greater than the singular) for a compensation or valuable consideration in relation to real estate were made to “constitute the person * * * a real estate broker * * * ■within the meaning of this act.”
In 1927 the legislature repealed the latter or “two-acts” provision (original section 4), which had obviously been enacted that none might escape regulation except those engaging in a single act or transaction.
Counsel for Weiner, with some degree of plausibility, argue that the 1927 repeal indicated a purpose to see that the person who engaged in only “two acts” was thereby relieved altogether from the operation of the statute, unless it were shown that the person is engaged in the business of a real estate broker or salesman. I think the contrary is true, namely, that the legislature decided not to await a second transaction, but to let the very first *262transaction subject a person to regulation. This view appears to represent tbe only logical inference from a careful reading of the present statute as a whole. Tbe aforesaid misinterpretation by Weiner’s counsel may well have been erroneously indulged in by others prior to tbe 1929 amendment; at any rate, we know that tbe legislature in that year pondered tbe subject with tbe evident view of clarifying tbe statute and removing all possible doubt. This it did. Tbe changes above noted lead irresistibly to tbe conclusion that tbe term “real estate broker, ’ ’ as now defined, includes one who eng'ages even in a single transaction. No other explanation will account for tbe elimination of tbe expression “for others as a whole or partial vocation,” found in tbe 1925 law, and tbe substitution of tbe phrase “for another or others” by tbe act of 1929.
Such is tbe history and evolution of our real estate broker statute. It will be noticed that tbe existing form of our act differs widely from the acts in certain jurisdictions whence tbe plaintiff draws bis authorities. To cite these is therefore an idle thing*. In no aspect of tbe case at bar does it matter what would be considered tbe real estate broker business in other states (which is the question under their particular statutes), since our statute expressly concerns itself not only with tbe business, but (alternatively) with tbe capacity of those falling within tbe definition of our act in its present amended form.
Unless I am correct in tbe foregoing, I submit that tbe opinion of this court in Rice v. Loan Co., 82 Colo. 163, 258 Pac. 223, is devoid of meaning.
If Weiner was a real estate broker within tbe express terms of our act, and if be bad no license, there could be no recovery of compensation for bis services. Hittson v. Browne, 3 Colo. 304, 309; Payne v. Volkman, 183 Wis. 412, 198 N. W. 438; 3 Willison on Contracts, §1766.
Tbe pleadings before us put beyond all doubt tbe fact that Weiner’s single transaction constituted him a real estate broker within tbe meaning of tbe 1929 amendment *263as plainly intended by onr state legislature, and those pleadings admit that he possessed no real estate broker’s license. It therefore seems clear that the lower court erred in overruling the defendant’s motion for judgment on the pleadings. According to my view, that motion was entitled to be sustained. For the reasons stated I dissent.
Mr. Justice Butler and Mr. Justice Holland concur in this opinion.