Opinion
No. 7,380.
Submitted April 30, 1935.
Decided May 9, 1935.
Mandamus — Abstracts of Title — Statute Regulating Business — Police Power of State — Constitutional Law. Abstracts of Title — Statute Regulating Business of Abstracting — Mandamus to Compel Issuance of Certificate — Insufficiency of Showing. 1. In a proceeding in mandamus to compel the Abstracters Board of Examiners to issue to plaintiff a certificate under the provision of Chapter 105, Laws of 1931, requiring an applicant for a certificate permitting him to do business as an abstracter to have for use a set of "abstract books or other system of indices or records showing in a sufficiently comprehensive form all instruments affecting title to real property in a county," held that a showing that the applicant had access to the records of the county was insufficient to meet the requirements of the Act. Statutes and Statutory Construction — Meaning of Terms — Rule. 2. The meaning of a term employed in a statute must be measured and is controlled by the connection in which it is employed, the evident purpose of the statute, and the subject to which it relates; and if a term has a well-defined meaning in the law, its use, without specific definition, will not render the Act inoperative for uncertainty. "Abstract of Title" — Definition. 3. An "abstract of title" is an epitome of the conveyances, transfers and other facts relied upon as evidence of title, together with all such facts appearing of record as may impair the title. Abstracts of Title — Statute Regulating Business — Requirements Prescribed by Board of Examiners — What Does not Constitute Exercise of Delegated Legislative Power. 4. The fact that the Abstracters Board of Examiners under the above Act required that an applicant for a certificate should have "tract indices," whereas the statute requires only "abstract books" or "other system of indices or records" sufficiently comprehensive for the purpose, held not to amount to an attempt to exercise delegated legislative power but was rather the exercise of discretion in determining what other systems were sufficiently comprehensive. State — Police Power — Regulation of Business or Profession — What not Violation of Due Process Clause of Constitution. 5. Under its police power, the state may regulate a business or profession when such regulation appears necessary for the general welfare of the people, and where the conduct of a business or the practice of a profession is potent for harm as well as for good, it may require such qualifications on the part of an applicant for a certificate permitting him to follow either as tend to insure against the effects of ignorance, incapacity, deception or fraud, and may enforce such requirements without contravening the due process of law clause of the Constitution. Same — Police Power — Regulation of Business or Profession — Constitutional Law. 6. In regulating a business or profession under its police power the state does not offend against the due process clause of the Constitution if the law is not unreasonable, arbitrary or capricious, and the means selected have a real and substantial relation to the object sought to be attained, and a classification of persons in that behalf may be based upon equipment, personal fitness or on both. Abstracts of Title — Statute Regulating Business — Exceptions Made in Act — Equal Protection of Law Clause of Constitution. 7. Chapter 105, supra, in excepting those holding a certificate permitting them to do business as abstracters under a former Act, or those who have abstract books required only partially completed, from the immediate operation of the Act, held not discriminatory or open to the constitutional objection that it amounts to a denial of the equal protection of the law. Same — Statute Regulating Business — Exception of County Clerks Made in Act. 8. The fact that the Act supra, exempts county clerks from its operation while engaged in the "preparation of abstracts," held insufficient to render the statute unconstitutional as discriminatory or as denying the equal protection of the law, such persons not being engaged in the public abstract business, and in their official capacity, incapable of complying with the provisions of the Act; the purpose of the provision held open to "conjecture." Same — Mandamus to Compel Issuance of Certificate to Abstracter — Refusal Held not Abuse of Discretion. 9. Under the above rules, held, on application for writ of mandate to compel the Abstracters Board of Examiners, to grant a certificate to relator, an abstracter of many years' experience and well qualified to conduct such business, that the board in denying the request because he did not own or control the requisite plant and tract indices prescribed by Chapter 105, supra, did not abuse its discretion, and that the district court in declaring otherwise committed error.
Appeal from District Court, Lewis and Clark County; W.H. Poorman, Judge.
Mr. Raymond T. Nagle, Attorney General, Mr. Enor K. Matson, Assistant Attorney General, and Mr. Rudolph Nelstead, of Counsel, for Appellants, submitted an original and a supplemental brief; Mr. Matson and Mr. Nelstead argued the cause orally.
Messrs. Toomey McFarland and Mr. John A. Chapman, for Respondent, submitted a brief; Mr. E.G. Toomey argued the cause orally.
Only one issue is presented to this court: Are sections 1 and 11 and related sections and clauses of Chapter 105, Laws of 1931, requiring that any person, firm or corporation desiring to engage in or continue the business of making and compiling abstracts of title to real estate, have for use in such business a set of abstract books or other system of indices or records showing in a sufficiently comprehensive form all instruments affecting title to real property on file or of record in the office of the county clerk and recorder as a condition precedent to the issuance of a certificate of authority, constitutional?
The abstract business is affected with a public interest and therefore subject to regulation under the police power of the state. There are two things essential for the compilation of abstracts: (1) The personal qualification of the abstracter, and (2) the abstract records or indices from which the information for the preparation of abstracts is obtained. If the legislature may prescribe one condition, why may it not prescribe the other? The police power of the state does not extend only to the public peace, health and safety. The courts now universally recognize that it also extends, by reason of the increasing complexity and conflict of modern social and economic tendencies, to the public welfare.
The police power is inherent in any government to enact laws, within the constitutional limits, to promote the order, safety, health, morals and general welfare of society (12 C.J. 904, sec. 412). It is impossible to limit the definition. It is as broad as the general welfare (12 C.J. 908, sec. 416). It is within the province of the police power to regulate all professions, trades, occupations and business enterprises that are of a quasi-public nature, or that may, if exercised or conducted without restriction, prove injurious to the general welfare. ( State ex rel. Marshall v. District Court, 50 Mont. 289, 296, 146 P. 743, Ann. Cas. 1917C, 164; Craig v. Board of Medical Examiners, 12 Mont. 203, 39 P. 532; Dent v. West Virginia, 129 U.S. 114, 9 Sup. Ct. 231, 32 L.Ed. 623; Noble State Bank v. Haskell, 219 U.S. 104, 31 Sup. Ct. 186, 55 L.Ed. 112; Nebiia v. People, 291 U.S. 502, 54 Sup. Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469.)
The abstracting business is one requiring not only special skill, training and knowledge, but, equally important, proper and sufficient records and indices. The equipment is just as essential as the personal qualification. One may have the ability and experience, but without adequate records, he cannot compile an abstract of title to real estate. In 12 C.J. 1160, we find the following statement: "A qualification may be valid which is based on equipment, or personal fitness, or both." (See cases cited in footnote, including Soon Hing v. Crowley, 113 U.S. 703, 5 Sup. Ct. 730, 28 L.Ed. 1145; Barbier v. Connolly, 113 U.S. 27, 5 Sup. Ct. 357, 28 L.Ed. 923.) The abstract business is a profession which affects the public welfare. ( Stephenson v. Cone, 24 S.D. 460, 124 N.W. 439, 26 L.R.A. (n.s.) 1207.)
The relator has not a vested right to use the indices in the county clerk's office for carrying on a private business. The relator's only right to use them is given him by section 455, Revised Codes 1921, which provides that "the public records and other matters in the office of any officer are at all times during office hours open to the inspection of any person." Chapter 105, Laws of 1931, modifies this statute in so far as abstracters are concerned. They would practically monopolize the indices in the county clerk's office for his work. The abstracter who complies with the law under consideration in this case has no occasion to refer to the county clerk's indices because he has accurate abstract records of his own.
At common law no person had a right to examine records in a public office in which he had no interest, present or prospective. ( State v. Rachac, 37 Minn. 372, 35 N.W. 7; State ex rel. Clay County Abstract Co. v. McCubrey, 84 Minn. 439, 87 N.W. 1126.) The legislature may regulate the use of public records for private business. ( Bean v. People, 7 Colo. 200, 2 P. 909; Cormack v. Wolcott, 37 Kan. 391, 15 P. 245.) In the foregoing decisions the court had occasion to construe statutes similar to section 455, supra.
Certificates issued to those engaged in the abstract business at the time of the passage of the Act: A statute which permits the issuance of a license to those engaged in a business or profession or trade before the adoption of the Act is not an unjust discrimination and not unconstitutional. ( Watson v. Maryland, 218 U.S. 173, 30 Sup. Ct. 644, 54 L.Ed. 987; Dent v. West Virginia, 129 U.S. 173, 30 Sup. Ct. 231, 32 L.Ed. 623; State v. Hathaway, 115 Mo. 36, 21 S.W. 1081; People v. Logan, 284 Ill. 83, 119 N.E. 913; State v. Briggs, 45 Or. 366, 77 P. 750, 78 P. 361, 2 Ann. Cas. 424; In re Inman, 8 Idaho, 398, 69 P. 120; State v. Call, 121 N.C. 643, 28 S.E. 517; Commonwealth v. Ward, 136 Ky. 146, 123 S.W. 673; State v. Doran, 28 S.D. 486, 134 N.W. 53; Criswell v. State, 126 Md. 103, 94 A. 549; Thomas v. State Board of Health, 72 W. Va. 776, 79 S.E. 725, 49 L.R.A. (n.s.) 150; note to People v. Griswold, L.R.A. 1915D, 538; note 20, A.L.R. 1111, 1112.)
The Abstracters Board of Examiners is a quasi-judicial board and had the right to reject relator's application for a certificate of authority. Administrative functions and discretions similar to that entrusted to the respondent board have always been upheld. In People ex rel. Lieberman v. Van De Carr, 199 U.S. 522, 26 Sup. Ct. 144, 50 L.Ed. 305, it was said that "the conferring of a discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power of the state is not violative of rights secured by the Fourteenth Amendment." (See, also, Mutual Film v. Industrial Commission, 236 U.S. 230, 35 Sup. Ct. 387, 59 L.Ed. 552; Hall v. Geiger-Jones Co., 242 U.S. 539, 37 Sup. Ct. 217, 61 L.Ed. 480, L.R.A. 1917F, 514.)
There is no provision in Chapter 105, Laws of 1931, which expressly or impliedly requires that applicants for such certificates of authority must own or have access to a tract index system, or any index system other than that maintained in the public offices of the counties of the state. Even if such a requirement of a tract index can be implied from the statute (which is not conceded), such requirement is unconstitutional and without effect to justify the refusal of the board to issue the certificate of authority sought herein.
Under sections 1 and 11 of the Act, the applicant need not possess the required equipment. It is sufficient if he "shall have [it] for use in such business." By section 455, Revised Codes 1921, it is provided: "The public records and other matters in the office of any officer are at all times, during office hours, open to the inspection of any person." (See, also, sec. 4810.) In his application to the board for a certificate of authority, relator stated that he would have for use in the business the tract books and indices of the records of Lewis and Clark county. Appellants do not deny that these records and indices are now available for relator's use. The requirement of accessibility has been met.
The Act further specifies the type of equipment which must be available for use in the applicant's business. It must be a set of "abstract books" or "other system of indices or records showing in a sufficiently comprehensive form all instruments affecting title to real property on file or of record in the office of the County Clerk and Recorder of each county," etc. Conceding, for the sake of argument, that the term "abstract books" might mean a "tract index," still the statute provides an alternative: "or other system of indices or records showing in a sufficiently comprehensive form all (recorded) instruments affecting title to real property." The indices and records which are kept in the various public offices of Lewis and Clark county surely show in complete and comprehensive form all instruments which are recorded in those offices and which affect titles to real property in the county. If the legislature had intended to restrict abstracters to the use of a tract indexing system, it could and would have said so by a use of words describing such a system. As the law stands, any indexing system which is sufficiently comprehensive to include all recorded instruments affecting real property titles may be used.
Apparently appellants contend that section 3 of the Act empowers the board to lay down its own requirements relative to the type of indices to be used by abstracters in their business. The section gives no such authority. The requirement of a "tract index" by the board is not a regulation having to do with the proper administration of its powers and duties nor with the carrying out of the purposes of the Act. The Act itself sets the standard, and the board has no power to set a requirement extending beyond those laid down by the legislature. To attempt to do so would be a violation of Article IV of the state Constitution. The board is an administrative arm of the executive branch of government, and it is prohibited by the above article from attempting to exercise any of the powers of the legislative branch, and the legislature could not delegate the power to do so in the absence of constitutional authority. Any attempt by the board to enlarge upon the requirements described in the Act is such an attempt to exercise legislative powers, and violates section 1, Article IV. (6 R.C.L. 178; Chicago, M. St. P. Ry. v. Board of Railway Commrs., 76 Mont. 305, 247 P. 162; Barbour v. State Board of Education, 92 Mont. 321, 13 P.2d 225; see, also, Hurst v. Warner, 102 Mich, 238, 60 N.W. 440, 47 Am. St. Rep. 525, 26 L.R.A. 484, a case similar to that at bar.)
The business of abstracting is not affected with public interests. "A state may not, under the guise of protecting the public, arbitrarily interfere with private business, or prohibit lawful occupations, or impose unreasonable or unnecessary restrictions upon them." ( State v. Gateway Mortuaries, 87 Mont. 225, at 240, 287 P. 156, 68 A.L.R. 1512, and as to licensing Acts, see Frazer v. Shelton, 320 Ill. 253, 150 N.E. 696, 43 A.L.R. 1086.) The element of public welfare is essential to an exercise of the police power in licensing occupations and professions. The statute herein involved expressly exempts from the licensing requirements persons employed by counties and cities. Such provision, in itself, indicates that the regulatory Act is totally unconnected with public welfare. ( Doe v. Jones, 327 Ill. 387, 158 N.E. 703, 55 A.L.R. 303, at 306.) The business of abstracting titles has not been tested under the licensing decisions, but allied occupations have been held exempt from licensing requirements. Thus, accountancy is held beyond the licensing power of the state ( Frazer v. Shelton, supra; Campbell v. McIntyre, 165 Tenn. 47, 52 S.W.2d 162), and land surveying is held beyond the police power of the state to regulate by licensing ( Doe v. Jones, supra). Land surveying is completely and peculiarly analogous because the records are official, have evidentiary value in the courts of the state, and concern land records and titles. For other decisions, see People v. Harrison, 219 N.Y. 562, 114 N.E. 1076; State v. Walker, 48 Wn. 8, 92 P. 775, 15 Ann. Cas. 257; People v. Ringe, 197 N.Y. 143, 90 N.E. 451, 18 Ann. Cas. 474, 27 L.R.A. (n.s.) 528; Southwest Utility Ice Co. v. Liebmann, (C.C.A.) 52 F.2d 349; Tyson Bro. v. Banton, 271 U.S. 418, 47 Sup. Ct. 426, 71 L.Ed. 718, 58 A.L.R. 1236; Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 43 Sup. Ct. 630, 67 L.Ed. 1103, 27 A.L.R. 1280.
The regulations imposed by Chapter 105, are unreasonable and are not within the police power. If the regulatory provisions of the Act can be justified at all, it is possible only on the theory that the state should take some reasonable steps to safeguard the public welfare. To carry out this legislative purpose, the means adopted must be reasonably designed to attain the end, and the legislature is not justified in imposing more rigorous and onerous requirements than are necessary to carry out the proper purposes of the Act. Thus, if the requirements imposed go beyond the necessities of the situation sought to be controlled, such requirements are unreasonable and arbitrary and interfere with the relator's constitutional rights to liberty and property without due process of law. ( Lawton v. Steele, 152 U.S. 133, 14 Sup. Ct. 499, 38 L.Ed. 385; Henderson v. Wickham, 92 U.S. 259, 23 L.Ed. 543; Hannibal St. J. Ry. v. Husen, 95 U.S. 465, 24 L.Ed. 527; People v. Hawkins, 157 N.Y. 1, 51 N.E. 257, 68 Am. St. Rep. 736, 42 L.R.A. 490; Yick Wo v. Hopkins, 118 U.S. 356, 6 Sup. Ct. 1064, 30 L.Ed. 220; 12 C.J. 931, 932.) [Here counsel set forth reasons why regulations imposed are unreasonable.]
Chapter 105, is discriminatory and denies relator the equal protection of the laws. From sections 12 and 18 it is apparent that the Act sets up four classifications of persons: (1) Those who may be certified upon showing they have the tract indices required by the board; (2) those holding certificates of authority as of March 1, 1931, who need make no showing of success to a tract index to receive a certificate; (3) those having a tract index fifty per cent. completed who may receive a temporary certificate, renewable for one year, and who, conceivably, might receive a new temporary certificate at the end of two years upon a showing of "good faith" efforts to complete their indices; (4) county clerks or persons employed to make abstracts for a county, who need no certificate of authority whatever. It is obvious that the Act does not operate equally upon the members of these different classes.
It is well established that the so-called "equal protection" clause of the Fourteenth Amendment to the Federal Constitution does not require that all laws must operate with the same effect on all persons. The legislature may restrict the operation of its Acts to certain classes which it may define, but it is a fundamental principle that such classifications must be reasonable and not arbitrary; they must be germane to the purposes of the Act which effects them; there must be something peculiar about them which makes them peculiarly amenable to the type of regulation imposed. (17 R.C.L. 510, sec. 31; Gulf, C. S.F. Ry. Co. v. Ellis, 165 U.S. 150, 17 Sup. Ct. 255, 41 L.Ed. 666; State v. Cudahy Packing Co., 33 Mont. 179, 82 P. 833, 114 Am. St. Rep. 804, 8 Ann. Cas. 717; Hill v. Rae, 52 Mont. 378, 158 P. 826, Ann. Cas. 1917E, 210, L.R.A. 1917A, 495.)
The appellant board had no discretionary power to reject relator's application. Appellants in their brief state that the board had power to fix the conditions and requirements to be met by applicants for certificates of authority, because it had power to adopt rules and regulations necessary for the proper administration of its powers and duties and the carrying out of the purposes of Chapter 105. The argument is fallacious. An administrative board such as this has no power to adopt and enforce rules which go beyond the scope of its powers as fixed by the statute. Any attempt to do so would be invalid as a usurpation of legislative functions which is prohibited by Article IV of our Constitution.
Application by the state, on the relation of George O. Freeman, for a writ of mandate against the Abstracters Board of Examiners to compel the board to issue to the relator a certificate of authority to conduct an abstract business in Lewis and Clark county. From a judgment awarding the writ, defendants appeal.
For a period of sixteen years prior to July 1, 1932, the relator was continuously engaged in the business of abstracting titles to real estate in Lewis and Clark county, and during all of that period in which such a certificate was required by law he has held, and still holds, a certificate as a registered abstracter. However, relator was not in business for himself but managed the business of the Montana Audit Company, which company owned the plant, abstract books, and indices which relator used jointly with other officers of the company. Owing to the shrinkage of business in this line, due to the depression, relator's connection with the company was severed in 1932, and thereupon he made application to the defendant board for a "certificate of authority" to open and conduct an abstracting business of his own.
There can be no question but that the relator is personally well qualified to conduct such a business, but his only showing to the board as to his equipment for conducting such a business is that he "does have `for use in such business' the original records in the office of the Clerk and Recorder of Lewis and Clark County." The board denied the application and refused the certificate on the ground that the applicant had not complied with the requirements of Chapter 105, Laws of 1931. Relator thereupon instituted this proceeding in the district court of Lewis and Clark county and therein contended that Chapter 105, above, is unconstitutional. Issue being joined and a hearing had, the court entered its judgment declaring that the Act is unconstitutional and that the relator requires no certificate of authority from the board to engage in the abstract business. The board thereupon appealed.
Prior to April 1, 1931, the only regulation of the business of abstracting titles to real estate was provided by Chapter 43, Laws of 1915. This Act merely required the filing of a bond with the state treasurer and the issuance by the treasurer of a certificate entitling the principal to engage in business (secs. 4139, 4140, Rev. Codes 1921), and the procuring of a seal, an impression of which was to be filed with the state treasurer before the issuance of the certificate. The certificate was valid so long as the bond remained in force, but the bond was to be for one year, and was thereafter renewable annually by a certificate of continuation. (Sec. 4143, Rev. Codes 1921, as amended by Chap. 60, Laws 1925.)
Chapter 105 of Laws of 1931, created the board of examiners, and provided for the examination of applicants, the registering of abstracters, and the issuance of a "Certificate of Authority" to those who comply with the requirements of the Act, to embark upon the business of abstracting.
Section 1 of the Act provides that: "Any person * * * desiring to engage in or continue the business of making and compiling abstracts, * * * shall have for use in such business a set of abstract books or other system of indices or records showing in a sufficiently comprehensive form all instruments affecting title to real property on file or of record in the office of the County Clerk and Recorder, * * * and shall have in charge of such business a registered abstracter, * * * and shall first obtain a Certificate of Authority," etc.
Section 11 of the Act also provides that: "Every person, firm or corporation, who shall furnish satisfactory proof to said board that applicant has for use in such business a set of abstract books or other system of indices and shall have in charge of such business a registered abstracter, * * * furnish the bond * * * and pay the application fee * * * shall be entitled, upon compliance with the other provisions of this law, to receive from said Board a Certificate of Authority. Certificates of Authority shall be valid for one year. * * *"
The Act contains three exceptions to the above requirements. Section 12 of the Act declares (1) that: "Any person, firm or corporation not having the abstract books or indices as required, * * * who, upon the 1st day of March, 1931, is the holder of a valid and subsisting Certificate of Authority issued * * * pursuant to Section 4140 of the Revised Codes of * * * 1921, and who shall make application to said Board prior to the expiration of such Certificate, * * * and who shall comply with the other requirements hereof * * * shall, upon the payment of Five Dollars [the regular fee], as is herein provided be issued a Certificate of Authority under the provisions of this Act." (2) "Any person, firm or corporation, desiring to engage in the business * * * who is not at the time of making application * * * provided with the abstract books or indices, * * * and who can comply with the other requirements, * * * shall, upon submitting satisfactory proof to said Board that he has been engaged in good faith in the preparation of such abstract books or indices and that upon the date of such application that such abstract books or indices are at least fifty per cent completed and that he intends to complete the same, * * * be issued a Temporary Certificate of Authority good for a period of one year, and, upon good cause being shown, * * * such Certificate may be renewed * * * for an additional term of one year only." (3) "The provisions of this Act shall not apply to County Clerks and Recorders or persons employed by counties in the preparation of abstracts of title." (Section 18 of the Act.)
In support of the judgment, it is first contended that [1] relator's showing that he has access to the records of the county is a sufficient compliance with the requirements of the Act; that there could be no more "comprehensive" index than that of the county, which is "all-inclusive." This contention cannot be maintained; it would render the requirements of sections 1 and 11, above, meaningless, and set at naught the manifest intention of the Legislature to require an abstracter to have a plant or set of "abstract books" from which he can compile abstracts accurately. The undisputed evidence received on the trial is to the effect that an abstracter cannot safely rely upon the records and indices in the clerk's office for use in his business, for the reason that, under the statutes, the county clerk merely indexes instruments under the names of the parties. (Sec. 4799, Rev. Codes 1921.) A break in the chain of title, by name indices, would mislead the investigator into believing that he had reached the end of the chain. Numerous instances in illustration could be given; a few will suffice:
An abstracter is requested to make an abstract of title to a tract of land of which A is the owner of record. A had theretofore transferred to B, who had not recorded his deed but had mortgaged the land to C. Jane Doe is the record owner of a tract of land; she married Richard Roe; and thereafter joins with him in a deed to the property without reference to her maiden name. A is a corporation owning real estate; it changes its name to B, and thereafter transfers the property under the new name. Many such examples of instruments of record affecting title, but which the indices in the clerk's office would not disclose to the abstracter, might be given; change of title by the law of descent, with mortgage of an heir's interest before an estate is closed; the recording of a quitclaim deed by the holder of an unrecorded contract for a deed. Such pitfalls are avoided by the experienced abstracter through the compilation and use of an "abstract book or tract index," which describes every piece of real estate in the county and to which is "charged" every instrument of record in the county in any manner affecting the title to the "tract regardless of who gave the instrument or who is named in the instrument." The indices differ somewhat with different individuals, but the system is universal among abstracters, and it is such records, varying according to the individual ideas on the subject, that are known to the men in the business as "abstract books or other system of indices or records showing in a sufficiently comprehensive form all instruments" affecting the title to each tract of land in a county. This is manifestly the meaning of the terms used by the legislature.
"The meaning of a given term employed in a statute must be [2] measured and controlled by the connection in which it is employed, the evident purpose of the statute, and the subject to which it relates" ( Northern Pacific Ry. Co. v. Sanders County, 66 Mont. 608, 612, 214 P. 596), and, if the term has a well-defined meaning in the law, its use, without specific definition, will not render the Act inoperative for uncertainty ( State ex rel. Lyman v. Stewart, 58 Mont. 1, 190 P. 129).
The verb "abstract" means to withdraw or take from; [3] consequently the noun, as used here, means "that which concentrates within itself the essential qualities of a larger thing or several things." (See Merriam-Webster's New Dictionary [2d ed.].) Therefore "an abstract of title is an epitome of the conveyances, transfers and other facts relied upon as evidence of title, together with all such facts appearing of record as may impair the title." (1 Cal. Jur. 117; DeHuy v. Osborne, 96 Fla. 435, 118 So. 161.) Mere indices of the records found in the [4] county clerk's office do not constitute "abstract books" ( Hess v. D.T. Draffen Co., 99 Mo. App. 580, 74 S.W. 440), and the mere right to consult the clerk's indices and the general records of the county cannot be tortured into compliance with the requirements of Chapter 105, above. We do not therefore find in the reference by the board to "tract indices" any attempt to exercise delegated legislative powers, but rather the exercise of discretion in determining what systems, other than "abstract books," are "sufficiently comprehensive" for proper use in the business.
This court has heretofore had occasion to comment upon and compare the two methods of running down the title to a tract of land, i.e., from the indices in the clerk's office and from a "tract index," and has said: "It appears that the latter is the only safe, reliable, and feasible method." ( Arnold v. Custer County, 83 Mont. 130, 269 P. 396, 399.) It is undisputed in the record that "the minimum requirement" of the terms used in the Act is "a tract index showing all instruments affecting all pieces of property in the county." Such requirement increases the protection of the public in relying upon the accuracy of abstracts. "Index learning turns no student pale, yet holds the eel of science by the tail," declared Alexander Pope.
It is contended, however, that the business of abstracting [5] titles is not affected with a public interest, and therefore the legislature is without power to regulate that business, under the "due process of law" clause of our Constitution (Art. III, sec. 27) and the Constitution of the United States (Amendment 14, sec. 1). It is true that power to fix rates and prices does not exist unless the business is "affected with a public interest"; but "the authority to regulate the conduct of a business * * * comes from a branch of the police power which may be quite distinct from the power to fix prices." ( Tyson Bro. United Theatre Ticket Offices v. Banton, 273 U.S. 418, 47 Sup. Ct. 426, 428, 71 L.Ed. 718, 58 A.L.R. 1236; Southwest Utility Ice Co. v. Liebmann, (C.C.A. Okla.) 52 Fed. 2d 349.) This "branch of the police power," which is inherent in the state, permits the reasonable regulation of a business or profession when such regulation appears necessary for the general welfare of the people. Thus, under similar attacks on constitutional grounds, this court has upheld the requirement of examination and registration of professional nurses ( State ex rel. Marshall v. District Court, 50 Mont. 289, 146 P. 743, 746, Ann. Cas. 1917C, 164), wherein it is held that "`due process of law' is not necessarily judicial process," and in those cases where the practice of a profession is potent for harm as well as for good the state may require such qualifications as tend in its judgment to insure against the effects of ignorance, incapacity, deception, or fraud, and may enforce such requirements by any proceedings adapted to the nature of the case. (See Craig v. Board of Medical Examiners, 12 Mont. 203, 29 P. 532.)
While the relator is undoubtedly qualified as an abstracter and has received all that the Act warrants because of that fact — his registration — the law goes one step further and, in effect, says: No matter how well qualified you are to make abstracts, unless you are equipped to do that work which experience has demonstrated cannot be done from the records and indices in the county clerk's office alone, you cannot conduct an abstract business unless you first show to the board that you have the necessary equipment. Owing to the particular nature of the business, the result of an attempt to make an abstract might be more satisfactory in a case where an unqualified man worked with a complete tract index or set of abstract books than when a qualified man worked without the aid of such books. This additional requirement with reference to the instant business would therefore seem reasonable.
"The guaranty of due process, as has often been held, demands [6] only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. It results that a regulation valid for one sort of business, or in given circumstances, may be invalid for another sort, or for the same business under other circumstances, because the reasonableness of each regulation depends upon the relevant facts." ( Nebbia v. New York, 291 U.S. 502, 54 Sup. Ct. 505, 510, 78 L.Ed. 940, 89 A.L.R. 1469.) In discussing the power of a state to regulate a business of a private nature in the interest of the public welfare, the supreme court listed with apparent approval the various regulations affecting the milk industry in New York, and declared that the producer of milk is "subject to rules governing the care and feeding of his cows and the care of the milk produced, the condition and surroundings of his barns and buildings used for production of milk, the utensils used, and the persons employed in milking." These requirements, proper for the protection of the public health, are akin to the requirements here for the protection of the general welfare of the people, which the law under consideration has for its purpose by protecting titles in every county in the state. What makes for the general welfare is necessarily, in the first instance, a matter of legislative judgment and a judicial review of such judgment is limited. ( Noble State Bank v. Haskell, 219 U.S. 104, 31 Sup. Ct. 186, 55 L.Ed. 112, Ann. Cas. 1912A, 487, 32 L.R.A. (n.s.) 1062.) "A classification may be valid which is based upon equipment, or on personal fitness, or on both." (12 C.J. 1159, 1160, and note 32.)
It is next contended that the three exceptions from compliance [7] with the Act, or the immediate compliance therewith, contained in sections 12 and 18 quoted above, render the Act discriminatory and deny to the relator the equal protection of the law. Section 12 deals with temporary expediency to the end that no hardship be worked upon those in business by a change in the law and at its inception, and to give all persons an opportunity to qualify within a reasonable time. As to those in business and then holding a certificate issued under the old law, they are entitled to a certificate for one year from the expiration of the current certificate, at the end of which they must comply with the requirements of the Act or go out of business, or those who are making an honest effort to perfect a plant are permitted a temporary certificate on showing that they have their books half completed; this certificate may be renewed once, and once only. This, it would seem, constitutes a reasonable classification, if it may be called classification. The constitutional provisions against discrimination do "not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time." All things must have a period of adjustment, and such classification is not "arbitrary classification." ( Sperry Hutchinson Co. v. Rhodes, 220 U.S. 502, 31 Sup. Ct. 490, 491, 55 L.Ed. 561; Williams v. Walsh, 222 U.S. 415, 421, 32 Sup. Ct. 137, 56 L.Ed. 253.)
The purpose of the Act is to require all abstracters to come within the provisions thereof within a reasonable time; if the board has, as indicated, issued certain certificates to which the applicants were not entitled, because of the lapse of time without compliance with the requirements, that fact forms no basis for declaring the law itself discriminatory.
As to the exception of county clerks and "persons employed by [8] counties in the preparation of abstracts," contained in section 18, such persons are not engaged in the business of abstracting titles, and do not come into competition with abstracters. What purpose was intended to be accomplished by including with the county clerks other "persons employed by counties in the preparation of abstracts" is left to conjecture. It is certain that the county commissioners have no authority to engage "other persons" at county expense to engage in the business of making abstracts for individuals; they may employ others than the county clerk to prepare abstracts for the county in connection with the taking of tax deeds or the sale of property acquired by the county ( Arnold v. Custer County, above), and this provision may authorize the county to employ others than abstracters with authority to make such abstracts, but in doing so they are not engaged in or conducting an abstract business; their activity would be, at most, sporadic. If others than abstracters are thus employed hereafter, they will not be engaged in the business of abstracting. ( Morningstar v. State, 135 Ala. 66, 33 So. 485; State v. Roberson, 136 N.C. 587, 48 S.E. 595; Fleckenstein Bros. Co. v. Fleckenstein, 66 N.J. Eq. 252, 57 A. 1025; Continental Finance Corp. v. Warren, 10 N.J. Misc. 607, 160 A. 87.) Parenthetically, it may be doubted that any board of county commissioners having occasion to ascertain the condition of the title to real property will employ others than accredited abstracters to perform the work for them.
Our only provision authorizing the county clerk to search his records and certify to the result thereof is that he "may, upon the application of any person * * * make searches for conveyances, mortgages, and all other instruments, papers, or notices recorded or filed in his office, and furnish a certificate thereof." (Sec. 4807, Rev. Codes 1921.) This section authorizes the clerk to make certified copies of particular instruments called to his attention, but, if it is broad enough to include authority to make abstracts, it was not intended to make the clerk a public abstracter; nor would an abstract made by him contain matters found in other county offices affecting the title to land. Further, the clerk could not be compelled to make abstracts by reason of such a provision. ( Dirks v. Collin, 37 Wn. 620, 79 P. 1112.) The clerk, in his official capacity, could not comply with the provisions of this Act, as he is without authority to prepare or maintain at public expense any other "indices" than those which he is by law directed to keep. ( Smith v. Lamping, 27 Wn. 624, 68 P. 195.) There is no unconstitutional discrimination found in this exemption.
On the record it is clear that the board did not abuse its [9] discretion in denying the relator a certificate of authority. The denial was not based upon failure to comply with any rule or regulation set up by the board, but for the reason that the relator "does not own or control the requisite plant and tract indices prescribed by said sections 1 and 11, Chapter 105, Laws of 1931." The Act does not violate any one of the constitutional provisions on which relator relies.
The judgment is reversed and the cause remanded to the district court of Lewis and Clark county, with direction to dismiss the proceeding.
ASSOCIATE JUSTICES STEWART, ANDERSON and MORRIS concur.
MR. CHIEF JUSTICE SANDS, being absent on account of illness, did not hear the argument, and takes no part in the foregoing decision.
Rehearing denied June 5, 1935.