
    Real Estate Brokers’ Examinations
    
      October 21, 1940.—
   Barco, Deputy Attorney General,

This will acknowledge receipt of your recent communication, in which you request our opinion on the following statement of facts:

In January 1937 and in July 1939, an applicant took examinations for a real estate broker’s license, pursuant to the provisions of the Real Estate Brokers License Act of May 1,1929, P. L. 1216, 63 PS §431 et seq. The applicant failed to pass either examination. Section 1(c) of the Act of May 16, 1935, P. L. 170, 63 PS §437, which amended the original Real Estate Brokers License Act of 1929, supra, in effect at the time the applicant took the first examination, provided, inter alia, as follows:

“Any individual, who fails to pass the examination at two successive examinations, shall be ineligible for a similar examination, until after the expiration of one full year from the time such individual took the last examination : Provided, however, That any applicant who fails to pass a salesman’s examination shall be ineligible to apply for, or operate under, a temporary broker’s certificate.”

This section of the act was again amended by the Act of July 2,1937, P. L. 2811, sec. 3, 63 PS §437, and, at the time the applicant took the second examination, the following provision was in effect:

“Any individual, who fails to pass the examination at two successive examinations, shall be ineligible for a similar examination, until after the expiration of two full years from the time such individual took the last examination.”

Specifically, you now ask to be advised whether the applicant has failed “two successive examinations” within the meaning of the Act of 1937, supra, and if he must wait two years from July 1939 before he is entitled to take another examination for a license.

It is evident that had the applicant taken the second examination prior to July 2, 1937, he would have had to wait but one year before he could take a similar examination. Under the provisions of the present law, had he taken two examinations since July 2, 1937, and failed both, he would have to wait until two years after the last examination before he would be eligible to take another.

The question now arises whether this applicant has failed two successive examinations within the meaning of the provision of the 1937 amendment, and must, therefore, wait two years to take another examination, or whether he has taken and failed but one examination under the 1937 amendment.

In answering these questions as to whether the provisions of the amendatory Act of 1937, sec. 3, or those of the amendatory Act of 1935, sec. 1, control, it is apparent that we are dealing with the interpretation of a procedural act. It is clear, therefore, that the provisions of the last amendment on this subject govern our conclusions. In light of this fact, we are of the opinion that the applicant under discussion has failed but one examination, under the provisions of section 3 (c) of the Act of 1937, and, therefore, he is entitled to take another examination. If he fails to pass this examination he will, of course, be ineligible to take another until two years have elapsed.

Your second question arises by reason of the uncertainty that exists as to the extent to which the act limits the number of examinations the individual may be eligible to take.

Section 3(c) of the Act of 1937 contains the following provision:

“Any individual, who fails to pass the examination at two successive examinations, shall be ineligible for a similar examination, until after the expiration of two full years from the time such individual took the last examination.”

It will be noted that this provision indicates that the individual shall be ineligible for a similar examination. The question arises whether this means one examination, or whether it means that after the expiration of two full years an individual is again eligible to take two examinations. The term “examination” in this provision is singular in number. The question has been raised as to whether the term “similar examination” merely refers to the type of examination, or to the number of examinations that the individual may again be eligible to take.

The word “similar” is defined in Bouvier’s Law Dictionary as follows:

“Similar. Denotes partial resemblance, and also sameness in all essential particulars; Com. v. Fontain, 127 Mass. 454.” (Italics supplied.)

5 Words & Phrases (Fifth Series), p. 363, states:

“The word ‘similar’ is a synonym for the word ‘like.’ Castell v. United States, D. C. N. Y., 20 F. Supp. 175, 179.”

The Statutory Construction Act of May 28,1937, P. L. 1019, art. Ill, sec. 33, 46 PS §533, states this rule:

“General words shall be construed to take their meanings and be restricted by preceding particular words.”

It is apparent that the legislature by the term “similar examination” as used in the provisions of the Real Estate Law, not only intended to limit the number of examinations, but also specified the interval which must elapse before the individual who has failed two successive examinations can take a reexamination. This interval has been set at two years by the legislature in such a case. Therefore, the term “similar examination” does not mean two more examinations, but another “like” examination.

It is, therefore, our opinion, and you are accordingly advised, that:

1. An applicant for a real estate broker’s license who took an examination in July 1939, which he failed, under the provisions of the Act of 1937, sec. 3(c), is entitled to take another examination. The fact that he took an examination in January 1936, which he also failed, does not take this right away from him. If he fails the second examination he is ineligible to take a similar examination until a period of two years has elapsed.

2. The term “a similar examination”, as contained in the provisions of section 3 (c) of the Act of July 2, 1937, P. L. 2811, 63 PS §437, means that an applicant for a real estate broker’s or salesman’s license is not eligible to take another “like” examination, after he has failed two in succession, until two years have elapsed.  