The opinion
Whiteside, J.,
dissenting. Finding myself unable to agree with the conclusions reached by the majority, I must dissent from this judgment.
Appellant is engaged in the business of a used motor vehicle broker. The basic question before the court is whether or not a person engaged in such a business is a “dealer” subject to being licensed pursuant to R. C. 4517. The judgment of the trial court and that of a majority herein concludes that a person engaged in such a business is a dealer within the meaning of the licensing statute, but further concludes, by implication from the statutes, that such a person may not obtain a license to engage in such a used motor vehicle broker business. He is then precluded by implication from engaging in such business at all.
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There is no express statutory provision prohibiting a person from engaging in the business of used motor vehicle broker, but this prohibition is implied from the application of R. C. 4505.18, which prohibits a person from displaying or displaying for sale or selling a motor vehicle as a dealer without having obtained either a manufacturer’s or importer’s certificate, or a certificate of title for the vehicle involved.
If we were to apply the ordinary meaning of the words broker and dealer, it would be quite clear that a broker is not a dealer. Bouvier’s Law Dictionary (8th ed. 3rd rev. 1914) defines brokers as follows:
“Those who are engaged for others in the negotiation of contracts relative to property, with the custody of which they have no concern. * * *
“One who negotiates a sale of another’s property without having either actual or constructive possession of it is a broker as distinguished from a factor * *
In
French
v.
City of Toledo
(1909), 81 Ohio St. 160 , we find the following definition of broker at page 167:
“ ‘A broker is an agent employed to effect bargains and contracts as a middleman between other persons for a compensation called brokerage. He takes no possession, as broker, of the subject-matter of the negotiations,’ Webster’s International Dictionary. ‘Brokers are those who are engaged for others in the negotiations of contracts relating to property with the custody of which they have no concern.’ *
* *
”
On the other hand, Bouvier’s Law Dictionary defines dealer as follows:
“A dealer in the popular, and therefore in the statutory sense of the word, is not one who buys to keep, or malees to sell, but one who buys to sell again.”
In
Gibson
v.
Bolner
(1956), 165 Ohio St. 357 , the following definition of dealer is found at page 359:
“Bouvier’s Law Dictionary (Baldwin’s Century Edition), contains the following two definitions of ‘dealer’:
“ ‘A dealer in the popular, and therefore in the statutory sense of the word is not one who buys to keep, or makes to sell, but. one who buys to sell again.
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“ ‘He stands intermediately between the producer and the consumer, and depends for his profit, not upon labor he bestows upon his commodities, but upon the skill and foresight with which he watches the market.’ ”
Also to be distinguished are the terms commission merchant and factor. Bouvier’s Law Dictionary,
supra,
defines commission merchant as follows:
“As this term is used, it is synonymous with the legal term ‘factor,’ and means one who receives goods, chattels, or merchandise, for sale, exchange, or other disposition, and who is to receive a compensation for his services, to be paid by the owner or derived from the sale of the goods.”
The same dictionary defines factor as follows:
“An agent employed to sell goods or merchandise consigned or delivered to him, by or for his principal, for a compensation, commonly called factorage or commission. # * #
“An agent for the sale of goods in his possession or consigned to him. * * *
“A
factor
or
commission merchant
is one who has the actual or technical possession of goods or wares of another for sale. A merchandise broker is one who negotiates the sale of merchandise without having it in his possession or control. He is simply an agent with very limited powers * # #
99
As stated in the record, the business of plaintiff is that of a broker. It obtains listings from owners of motor vehicles they desire to sell. The owner grants it the exclusive right for a period of time to advertise the motor vehicle for sale to the general public at a stated price. If the motor vehicle is sold during the term of the exclusive agency, or within one month thereafter, to someone with whom the plaintiff has negotiated, the owner agrees to pay the plaintiff a commission of 7% of the selling price. As stated in its articles of incorporation, the purposes for which the plaintiff company was formed are:
“To advertise used automobiles for the purpose of bringing together prospective sellers and buyers. To pro
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vide a place where prospective purchasers of used automobiles can obtain information as to the make, model and year of used automobiles that are available for sale, as well as the price for which the automobiles can be purchased from individuals wishing to dispose of them by private sale. To act as agent for the sellers of used automobiles regarding advertising the automobiles to the public. To provide such other services as may be necessary from time to time to assist the private individual owning an automobile in finding a buyer for his automobile.”
It is quite clear that if the ordinary meaning of the word dealer is applicable, plaintiff is not a dealer. There is no indication that plaintiff buys any motor vehicles for resale, or sells any automobiles that it owns.
However, there are statutory definitions of the word dealer which must be considered. R. C. 4517.02 prohibits any person other than a salesman or dealer licensed pursuant to statute, from engaging in the business of selling motor vehicles at retail. R. C. 4517.18 prohibits any person from engaging in the business of selling, auctioning, displaying, offering for sale, or dealing in motor vehicles at retail without having a license therefor. R. C. 4517.01 (J) defines dealer as:
“All persons engaged in the business of selling, displaying, offering for sale, or dealing in motor vehicles at an established place of business which is used exclusively for the purpose of selling, displaying, offering for sale, or dealing in motor vehicles. *
*
*”
R. C. 4517.01(E) defines business as:
“Any activities engaged in by any person for the object of gain, benefit, or advantage either direct or indirect. ’ ’
R. C. 4517.01(F) defines engaging in business as:
“Commencing, conducting, or continuing in business, or liquidating a business when the liquidator thereof holds himself out to be conducting such business; making a casual sale is not engaging in business.”
R. C. 4517.01(G) defines retail sale or sale at retail (of an automobile) as:
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“The act or attempted act of selling, bartering, exchanging, or otherwise disposing of a motor vehicle to an ultimate purchaser for use as a consumer.”
Based upon what is before us, it must be concluded that plaintiff does not sell, display, or deal in motor vehicles. It merely advertises the motor vehicles and places the prospective purchaser in contact with the owner of the motor vehicle, who in turn sells it to the purchaser. While it is stated in plaintiff’s brief that it shows colored pictures of motor vehicles advertised for sale, to prospective purchasers, there is no indication that there is any display of the motor vehicle itself by the plaintiff to any prospective purchaser. As noted above, with respect to the definition of the term dealer, dealing in motor vehicles must mean buying motor vehicles for the purpose of resale, and selling the motor vehicles so purchased. While, under a strict interpretation of the term “offering for sale,” plaintiff does not engage in the business of offering motor vehicles for sale, if such words were given a quite broad interpretation, they might be construed as to include engaging in the business of used car broker.
While it may be quite desirable that a person engaging in the business of used car broker should be licensed, it is quite apparent from the statute that the General Assembly did not contemplate such a business by R. O. chapter 4517.
In addition to the prohibition of R. C. 4505.18,
supra,
R. O. 4517.06 provides, in part, that:
“No dealer licensed under sections 4517.01 to 4517.18, inclusive, of the Revised Code, shall directly or indirectly, solicit the sale of a motor vehicle through a pecuniarily interested person, nor shall such dealer pay any commission or compensation in any form to any person in connection with the sale of a motor vehicle, unless such person is licensed as a salesman in the employ of said dealer.”
It would appear that sales solicited through the owner of the motor vehicle would be solicited through a pecuniarily interested person.
It would appear that by R. C. 4505.18 and 4517.06, a
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licensed motor vehicle dealer is precluded from engaging in the business of used motor vehicle broker. Thus, as stated above, the majority, by finding plaintiff’s business to be that of a dealer subject to licensing as a motor vehicle dealer, concludes that (3) plaintiff must obtain a license as a motor vehicle dealer in order to engage in the business of used motor vehicle broker and (2) if such license is obtained, by virtue of being so licensed as a motor vehicle dealer, it is precluded from engaging in the business of a used motor vehicle broker.
There can be no doubt that the business of used motor vehicle broker is a lawful business unless made unlawful by a valid statute. In the absence of an express statutory prohibition against engaging in an otherwise lawful business, courts should refrain from declaring unlawful an otherwise lawful business. If the business of used motor vehicle broker should be regulated or prohibited, this is a matter that should be accomplished by legislative action rather than judicial decision.
The right to engage in any business not a nuisance per se is guaranteed by Sections 1 and 16 of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution, except to the extent that such business is regulated, or prohibited by reasonable legislative acts bearing a reasonable relation to the public health, safety, morals or general welfare.
Frecker
v.
City of Dayton
(1950),
153
Ohio St. 14 ;
Benjamin
v.
City of Columbus
(1957), 167 Ohio St. 103 . It is only in unusual circumstances that an otherwise lawful business may be prohibited rather than merely regulated.
It is my view that R. C. 4505.18, 4517.01, 4517.02, 4517.-06 and 4517.18 should be read in
pari materia.
When so read, it is apparent that a person engaging in the business of used automobile broker is not a motor vehicle dealer subject to licensing pursuant to R. C. chapter 4517. While these sections do justify the conclusion that a motor vehicle dealer is precluded from also engaging in the business of used motor vehicle broker in connection with his business as a dealer, they equally compel the conclusion
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that the business of a used motor vehicle broker is not a type of business for which a motor vehicle dealer license must be obtained. The statutes regulate the dealer but do not prohibit a person from engaging in the business of broker. The activities of such a broker are more akin to those of a salesman as defined in R. C. 4517.01 (K) than those of a dealer, except that the broker’s activities are not on behalf of a dealer but on behalf of a private owner making a casual sale.
Such casual sales are excepted from the definition of “engaging in business” by R. C. 4517.01(F). The business of the broker is merely that of aiding private persons in making casual sales of motor vehicles they own.
Of course, although from what is before us, plaintiff’s business is strictly that of a used motor vehicle broker, it is always possible that the future conduct of the business may be otherwise. However, that potentiality must await its occurrence.
The business of broker is similar to that of an operator of a motor vehicle auction which was only recently regulated by R. C. chapter 4517. However, I have found no authority, prior to the adoption of such regulatory provisions, holding such an auction business to be, or not to be subject to licensing pursuant to R. C. chapter 4517 or prohibited thereby.
Accordingly, I would reverse the judgment of the Court of Common Pleas and render judgment finding and declaring that plaintiff is not required to obtain a dealer license pursuant to R. C. chapter 4517 in order to engage in the business of used motor vehicle broker consisting of obtaining listings from private owners, other than dealers, of used motor vehicles they desire to sell, advertising such motor vehicles as being for sale through such private owner, placing prospective purchasers in contact with the private owner, and collecting a commission in the event the motor vehicle is sold.