(dissenting).
I oppose that portion of the majority opinion denying Semke the standing to challenge the constitutionality of the licensing provisions of the act. The majority opinion considers at length the question of the constitutionality of the legislature entering the field of licensing and regulating the advertising and selling of new and used motor vehicles and find the act to be a valid exercise of the police power of the state. But having considered the whole of the act, it then refused to consider that portion of the act which requires an applicant to have a new car franchise from a manufacturer for the reason Semke has not made application for a license. It appears inconsistent to say Semke has the standing to challenge the whole of the act but not the portion that directly affects him.
The rule in this jurisdiction has long been, and justly so, that a challenge to a statute on constitutional grounds will not be considered unless properly raised. It is considered that one has not properly raised the constitutional question unless he is affected by the statute or has been deprived of some right or privilege to which he is lawfully entitled. Black v. Geissler, 58 Okl. 335, 149 P. 1124; Kelly v. Roetzel, 64 Okl. 36, 165 P. 1150; Bennett v. State, 147 Okl. 14, 294 P. 149; Hine v. Board of County Com’rs of McClain County, 177 Okl. 251, 58 P.2d 570; Davis v. McCasland, 182 Okl. 49, 75 P.2d 1118; Shinn v. Oklahoma City, 184 Okl. 236, 87 P.2d 136; C. D. Mitchell v. Williamson, Okl., 304 P.2d 314. The reasoning for the rule is that until one applies for a license and is denied, he has not been deprived of a right or privilege or he has not been affected by a statute which he claims to be unconstitutional. Shinn v. City of Oklahoma, 184 Okl. 236, 87 P.2d 136; Moore v. Oklahoma City, 161 Okl. 205, 17 P.2d 953. This is not the situation in the present case. Semke is not seeking a declaratory judgment as an anticipatory measure, but on the contrary, it is the Commission who is attempting to enforce the provisions of the act. The danger to Semke’s business is immediate and present.
The majority opinion cites Thrasher v. Board of Governors, Okl., 359 P.2d 717, and the cases therein cited for their position. There the Board had made no attempt to enforce the provisions of “The State Dental Act”, but it was the plaintiff who brought an action challenging its constitutionality in several respects. In the present case, Semke did not bring the action against the Commission to test the constitutionality of the act, but rather it is the Commission who has brought an action against Semke to enforce its licensing provisions. Under these circumstances he is entitled to defend and answer the charges against him by challenging its constitutionality. Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649; Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; 16 C.J.S. Constitutional Law § 76 p. 243.
In Shinn v. Oklahoma, supra, the plaintiff attacked the constitutionality of ordinances regulating the business of money lenders. The plaintiff had not acquired a license as required by the ordinance. For that reason defendant challenged plaintiff’s right to attack the validity of the ordinances on the theory the court will not consider hypothetical or anticipatory questions. The court held that since plaintiff had not obtained a license he was in no position to raise the constitutionality of the regulatory and revocation provisions of the ordinance, but that he did have a right to question the constitutionality of the ordinances insofar as they required the plaintiff to obtain a license before engaging or continuing in the occupation of money lender. The court said:
“This court will not pass upon the constitutionality of an act of the Legislature or any of its provisions until there is presented a proper case in which it is made to appear that the person complaining has been or is about to be denied some right or privilege to which he was *448lawfully entitled, or is about to be subjected to some of its burdens or penalties.”
See also, Moore v. Oklahoma City, supra, City of Shawnee v. Taylor, 191 Okl. 687, 132 P.2d 950; 16 Amjur. Constitutional Law, § 120 p. 314.
Applying the above principles to the present case, it is obvious that Semke is in immediate danger of being deprived of a right to pursue a lawful business unless he is allowed to challenge the constitutionality of that part of the licensing provisions which requires him to possess a new car dealer’s franchise. The judgment of the trial court subjects him to the burdens and penalties of the act. His business is in jeopardy unless our attention is directed to his constitutional complaints. It is inconceivable to say Semke is not affected by this act when by its enforcement as decreed by the trial coúrt, he is prevented from engaging in what would otherwise be a lawful occupation.
Additionally, the Supreme Court of the United States has long held that where an act is invalid or void upon its face as being discriminatory or arbitrary the constitutionality may be challenged even though the party has not made application for a license. Lovell v. City of Griffin, supra, Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264; City of Chicago v. Atchison T. & S. F., 357 U.S. 77, 78 S.Ct. 1063, 2 L.Ed. 2d 1174; Freedman v. Maryland, supra.
In my opinion the particular provision of the act which requires Semke to have a franchise with a manufacturer or distributor of new cars in order to qualify for a license to sell new or unused motor vehicles is invalid, unconstitutional and void on its face. It gives special and exclusive privileges to one set or class of dealers which it denies to others who are equally fit and capable of dealing in the subject matter involved. Joyner v. Centre Motor Co., Va., 66 S.E.2d 469. It allows the new car manufacturers and distributors in effect to set up a monopoly and control prices for no one is eligible under the act to sell new cars unless the manufacturer or distributor has given its prior approval. A person may meet all the requirements set by the Commission and the State of Oklahoma to qualify for a license to engage in the lawful business of selling new cars and be prevented from acquiring the license, not by the State of Oklahoma, but by some private corporation. The legislature does not have the prerogative to delegate its constitutional police powers to private corporations. This is repugnant to Art. 2 § 2, Art. 2 § 7, of the Oklahoma State Constitution and the inherent police power of the state legislature, along with the 14th amendment of the Federal Constitution. Nelsen v. Tilley, 137 Neb. 327, 289 N.W. 388, 126 A.L.R. 729; Ohio Motor Vehicle Deal v. Memphis Auto Sales, 103 Ohio App. 347, 142 N.E.2d 268.
I respectfully dissent.
I am authorized to state that McINER-NEY, J., concurs in the views herein expressed.