142 Ga. 57 | Ga. | 1914
(After stating the foregoing facts.)
The plaintiff brought suit against the Wiregrass Development Company to recover certain commissions, amounting to $7,500, alleged to have been earned by the sale of certain real estate under and by virtue of a contract entered into between the plaintiff and the defendant. -The defendant demurred to the petition on the various grounds set out in the foregoing statement of facts. One ground of the demurrer was that the plaintiff was not entitled to recover, because he had not complied.with the law with reference to real estate agents taking out a license to do business as required by statute, and that the contract was therefore void and unenforceable. The court sustained the demurrer and dismissed the petition. We will now consider this ground of the demurrer.
The Civil Code, § 971, provides: “Upon every person or firm engaged in the business of buying or selling real estate on commission, or as agents renting real estate, the sum of ten dollars for each county in which he or they may conduct said business. And if such person or firm shall engage in auctioneering, or selling property at public outcry, or by auction sales, he or they shall also be liable for and required to pay the tax required of auctioneers by section 923.” Section 978 of the Civil Code is as follows: “Before any person shall be authorized to open up or carry on said business [as provided for in that article, which included section 971, supra], they shall go before the ordinary of the county in which they propose to do business, and register their names, the business they propose to engage in, the place where it is to be conducted, and they shall then proceed to pay their tax to the collector. . Any person failing to register with the ordinary, .or, having reg
In the case of Hughes v. Snell, 28 Okla. 828 (115 Pac. 1105, 34 L. R. A. (N. S.) 1133, 25 Ann. Cas. (1912D) 374), the plaintiff brought suit to recover commissions earned on a sale of real estate. The defendants answered that the sale and the business out of which the same grew on the part of the plaintiff were prohibited and made unlawful by valid ordinances of Oklahoma City, in that the plaintiffs had failed to procure a license to permit them to engage in the business of real estate agents or brokers as required by the ordinance, and therefore the contract was void and unenforceable. It was held: “To the general rule that an act in violation of a statute or municipal ordinance forbidding it is void, there is an exception when the statute or ordinance is for the purpose of raising revenue, and does not make the act itself void, and the act is not malum in se nor detrimental to good morals.” In the ease of Vermont Loan &c. Co. v. Hoffman, 5 Idaho, 376 (49 Pac. 314, 37 L. R. A. 509, 95 Am. St. R. 186), it was said: “The general
As stated in the first part of this opinion, the sections of the code requiring each person or firm engaged in the business of buying or selling real estate on commission are in the division of the Civil Code under the title "Public Bevenue.” Art. 1 provides an ad valorem tax for the payment of outstanding bonds of the State, and an ad valorem tax to meet appropriations. Then follows the provision that "In addition to the ad valorem tax on real estate and personal property, as required by the constitution and provided for in the preceding sections, the following specific and occupation taxes shall be levied and collected each and every year beginning in 1910.” Civil Code, § 916. The tax imposed on real estate dealers follows in this same article. It is nowhere provided that a failure to pay the tax, or to procure the license and register, renders any contract made by the real estate dealer in violation of the act void. The penally for the violation of the act is against the person of the agent, and not against his act. For 'a violation of the act he is to be punished as for a misdemeanor, which is merely a means of enforcing the payment of the tax against the defaulter, but the State does not specifically or by necessary implication make contracts of sale between a dealer in real estate violating the statute and third persons void because of a failure to pay the tax. The act nowhere declares that such contracts shall be void; and unless it does so expressly or by necessary implication, under the weight of authority the contracts are valid and enforceable. From what has been said, and the authorities cited, we hold that the plaintiffs petition set forth a good cause of action, and should not have been dismissed on demurrer. The other grounds of demurrer are without substantial merit. Judgment reversed.