The opinion
I am of the opinion that the pawnbroking business is a lawful one and that it cannot be prohibited under our Constitution. Being a lawful business its prohibition would be an unconstitutional deprivation of property. Particularly would this be so as to those now engaged in the business. *Page 462
I agree that it can be regulated, but the regulation as to charges must be reasonable and not confiscatory; the test whether the regulation is confiscatory, as I see it, is not whether some one individual cannot earn a reasonable return upon his invested capital and for his individual efforts, but whether no one can. I think this should be tested in each individual case, in the instances of existing businesses, and as to those opening in the future, by the answer to the query whether the business can be carried on by any one at a reasonable profit under the charges fixed.
I believe that the licensing feature of the act, giving the Secretary of Banking power to reject any application upon the sole ground that in his opinion the granting of the license will not promote the convenience and advantage of the community in which the business is to be conducted, would be unconstitutional as a delegation of arbitrary power by the legislature to an individual over lawful enterprises, without the fixing of standards by the legislature for the exercise of the licensor's discretion, unless there was a guarantee of judicial review which as I understand the majority opinion sanctions.