holding that the invalidity of a provision for a de novo trial in superior court in the appeal section of an act did not affect the validity of the remainder of the appeal section
How later courts described this case
- holding that the invalidity of a provision for a de novo trial in superior court in the appeal section of an act did not affect the validity of the remainder of the appeal section
- unconstitutionality of provision for de novo trial in superior court in appeal section of an act did not render remainder of appeal section invalid
- severing an entire sentence
- cited by the majority at 295
Written by the judges who cited it.
The opinion
Finley, J.
(concurring specially)—The historical background of the small loans business and the legislative efforts of the several states to regulate it, in my judgment, constitute unshakable proof of the accuracy of the reasoning and the soundness of the results indicated in the opinion written by Judge Donworth. See 8 Law and Contemporary Problems 1-204. The dissenting opinion of Mr. Justice Brandeis in New State Ice Co. v. Liebmann, 285 U. S. 262, 280 , 76 *464 L. Ed. 747 , 52 S. Ct. 371 , respecting the problem of licensed monopoly versus unrestricted free competition in certain fields of business, is refreshing, enlightening and pertinent today, just as it was when written several years ago. As to the use of licensing techniques, and the validity of the concept that too much competition can be dangerous in the small loans business, I wish to emphasize particularly the language of Justice Brandéis in his dissent in the Liebmann case (at p. 304) as follows:
“ . . . while, ordinarily, free competition in the -common callings has been encouraged, the public welfare may at other times demand that monopolies be created. Upon this principle is based our whole modern practice of public utility regulation. It is no objection to the validity of the statute here assailed that it fosters monopoly. That, indeed, is its design. The certificate of public convenience . . . is a device—a recent social-economic invention—through which the monopoly is kept under effective control by vesting in a commission the power to terminate it whenever that course is required in the public interest. To grant any monopoly to any person as a favor is forbidden even if terminable. But where, as here, there is reasonable ground for the legislative conclusion that in order to secure a necessary service at reasonable rates, it may be necessary to curtail the right to enter the calling, it is, in my opinion, consistent with the due process clause to do so, whatever the nature of the business. The existence of such power in the legislature seems indispensable in our ever-changing society.”
I concur wholeheartedly in the views expressed and the results reached in the majority opinion, but feel compelled to register the personal observations briefly outlined above regarding this matter.