Davis, Brody, Wisniewski v. Barrett

115 N.W.2d 839, 253 Iowa 1178, 1962 Iowa Sup. LEXIS 749

• Court: Supreme Court of Iowa
• Decided: June 12, 1962
• Docket: 50613
• Status: Published

Opinions

Hays, J.

Appeal from a ruling on law points under rule 105, R. C. P. The question at issue is: “Can the plaintiffs herein maintain an action in the courts of Iowa for architects’ fees based upon a contract executed by the plaintiffs to perform architectural services in Iowa, when at the time of the execution of the contract plaintiffs were not registered architects in Iowa, as required by chapter 118, Code of Iowa, and more particularly section 118.6 thereof?” The trial court ruled plaintiffs’ contract was null and void and dismissed their petition. The question thus presented is one of first impression with this court.

Appellants are members of a partnership of architects in New York. Appellee is a resident of Polk County, Iowa. June 4, 1959, the parties executed a written agreement wherein appellants, architects, agreed to furnish architectural services for appellee, owner, in the erection of a shopping center in Des Moines, Iowa. At the time of the execution of the contract, appellants did not have certificates of registration as architects, although such certificates were obtained in August and September 1959. Appellants performed as per the contract and this action is to recover fees due them under the contract. Appellee pleaded the lack of certificates of registration as a defense, which, as above noted, was sustained by the trial court.

I. Chapter 118, Code of Iowa, was enacted in 1927 and appears in the Code under Title V, Regulations Under Police Power. Chapter 118, Code, 1958, is entitled Registered Architects. Sections 118.1 to 118.5 inclusive provide for the appointment of a board of examiners and outlines its duties.

Section 118.6 provides: “Any person wishing to practice architecture in the state of Iowa under the title ‘Architect’ shall secu/re from the board a certificate under the title ‘Architect’ as provided by this chapter. Bach member of a firm or corporation practicing architecture must have a certificate of registration under the provisions of this chapter * * (Italics added.)

Section 118.7 states: “Nothing contained in this chapter shall prevent amy person from making plans and specifications or supervising the construction of any building or part thereof, for himself or others, provided he does not use amy form of the word or title ‘Architect’.” (Italics added.)

Sections 118.8 to 118.11 inclusive provide for examinations, issuance of certificate, renewals and fees incidental thereto, which fees are to be used solely for the purposes of the chapter. Section 118.13 provides for revocation of certificates.

Section 118.14 is as follows: “On and after March 28, 1927, the use of the title ‘Architect’, or the use of any word or any letters or figures indicating or intending to imply that the person using the same is an architect, without compliance with the provisions of this chapter * * * shall be deemed a misdemeamor * * * .” (Italics added.)

II. “Police power”, while it has never been definitely defined, is generally held to mean the power, inherent in the Sovereign, to prohibit or regulate certain acts or functions of the populace as may be deemed to be inimical to the comfort, safety, health and welfare of society. The instant chapter appears to be the exercise, or attempted exercise, of that power.

Analyzing the chapter certain things are abundantly clear. Nowhere therein appears any prohibition against the carrying on of the business of an architect. While such business is not defined in the chapter, Webster’s International Dictionary defines an architect as “a person skilled in the art of building; a professional student of architecture or one who makes it his occupation to form plans and designs of and to draw up specifications for buildings and to superintend their execution.” Section 118.7, while in no sense a definition, specifically authorizes the doings of the very things which are normally performed by architects, with absolutely no regulations attached in so far as the work and functions are concerned. The legislature has nowhere in the chapter indicated anything in the performance of architectural functions that are inimical to the comfort, safety, health and welfare of society.

Section 118.14 may perhaps be considered as regulatory in so far as the use of the term “Architect” is concerned, in that it provides a penalty for the use thereof without a certificate. It does not however in any way restrict or curtail the force and effect of section 118.7. In the penalty provided, nothing is said relative to the legality of any contract which may have been entered into by one using the title of “Architect”, though he lacks a certificate. It is the act of using the title “Architect”, not the performance of architectural services, that is penalized. To say that, under the situation at hand, the penalty also includes a prohibition of use of our courts to collect for services legally performed is to insert into section 118.14 something which the legislature did not, directly or indirectly, say. While by the enactment of section 118.14 the legislature may have found the use of the title “Architect”, without a certificate, to be inimical to the comfort, safety, health and welfare of society, and thus be an exercise of the police power, it is not the function of the court to give to such exercise of police power an effect beyond that clearly intended by the legislature.

The general rule appears to be that a contract made in the course of a business or occupation for which a license is required by one who has not complied with such requirement is unenforceable where the statute expressly so provides, or where

it expressly or impliedly, as a police regulation, prohibits the conduct of such business without compliance. 53 C. J. S., Licenses, section 59; 33 Am. Jur., Licenses, sections 70 and 71; Annotations, 82 A. L. R.2d 1429. See also Pangborn v. Westlake, 36 Iowa 546; Ambro Advertising Agency v. Speed-way Manufacturing Co., 211 Iowa 276, 233 N.W. 499.

Cases from various other jurisdictions bearing upon this question are cited by both sides. Bach side cites a case very similar factually, but with opposite results. Appellee cites Sherwood v. Wise, 132 Wash. 295, 232 P. 309, 42 A. L. R. 1219, which bars a recovery. Appellants cite Dunn v. Finlayson (Municipal Ct. App. D. C.), 104 A.2d 830, which permits recovery. We have examined these cases and are of the opinion that the reasoning and result as expressed in the Dunn ease is the correct one and are inclined to adopt the same.

We hold that conceding chapter 118 to be a police power measure, it does not go to the extent of declaring the contract for architectural services void and that the trial court was in error. The ease is reversed and remanded for further hearing upon the merits. — Reversed and remanded.

Larson, Peterson, Thornton and Moore, JJ., concur. Oliver, J., Garfield, C. J., and Thompson and Snell, JJ., dissent.