Sellers v. Bles

92 S.E.2d 486, 198 Va. 49, 1956 Va. LEXIS 174

• Court: Supreme Court of Virginia
• Decided: April 23, 1956
• Docket: Record 4445
• Status: Published

Opinions

Miller, J.,

delivered the opinion of the court.

Hubert Sellers and Louis Sellers, trading as Sellers Brothers, hereinafter referred to as plaintiffs, filed a motion for judgment against M. J. Bles, trading as M. J. Bles Construction Company, to recover damages in the amount of $27,774 for the alleged breach of a written contract.

Defendant filed a motion to dismiss upon the ground that the contract sued on was “unlawful and void.” He asserted that it was unlawful and unenforceable because plaintiffs’ undertaking was in excess of $20,000, and they had not registered with, and qualified before the State Registration Board for Contractors, as general contractors or subcontractors, as required by Code of Virginia, 1950, Chapter 7, Title 54, §§ 54-113 to 54-145, inclusive.

The case was heard by the court on the notice of motion supplemented by a bill of particulars, certain exhibits submitted by council, and the motion to dismiss.

It appeared from the pleadings and exhibits that defendant, as a general contractor, entered into a contract in July, 1953, with the City of Martinsville, Virginia, entitled a “Contract for Projects Numbers 2, 4 and 5, and Specifications for Waterworks Improvements for City of Martinsville.” The contract provided that defendant was to clear a reservoir area, construct a dam and spillways, lay pipe lines, and do certain other things incidental to the completion of the whole waterworks improvement plan. Project No. 2 was entitled “Pipe Line;” Project No. 4 “Clearing Reservoir Area;” and Project No. 5 “Earth Fill Dam.” The area to be cleared and the work to be done under Project No. 4 was set out as follows:

“Beginning at a line parallel to and 300 ft. upstream above the construction base line of the dam, the contractor shall remove from the entire area to be flooded and a marginal strip approximately 50 ft„ beyond tfoe flooded area all trees, saplings, undergrowth, brush wood, fallen trees, houses, fences, and other perishable material. He shall also burn over all of the area.”

It was also provided that “the Contractor may determine for himself the method in which he shall destroy or remove the timber or material to be disposed of and shall have the privilege of clearing the land with bulldozers or similar equipment if found to be more economical than cutting with axes, saws or similar equipment.”

In clearing the reservoir area the contractor was allowed to use explosives for blasting, but in handling, using and storing explosives was required to conform to the laws and regulations of the City of Martinsville and the State, and to conduct blasting so as not to endanger persons or property. Strict requirements were prescribed as to adequate sanitary protection to insure cleanliness to the community and to prevent pollution of the water shed, in a manner satisfactory to the State Department of Health, the local Sanitary Officer and Engineer. The specifications only required that the trees be cut a short distance from the ground and the removal of stumps was not involved. No grading was required, no dirt was to be removed; and none of this was done.

Defendant, the general contractor, sublet Project No. 4 to plaintiffs as subcontractors, and the latter undertook the clearing of the reservoir area in accordance with the plans and specifications of that project. The area to be cleared consisted of 225 acres, and plaintiffs were to receive $143 per acre and the timber cut from that acreage.

A few weeks after plaintiffs began work, the Lester Lumber Company, Inc., made claim to the timber, and the parties interested being unable to agree on the ownership of the timber, defendant notified plaintiffs to stop all work and leave the area. Plaintiffs complied with that demand and then instituted their action on April 16, 1954.

The trial court, in a written opinion, held that plaintiffs were subcontractors within the meaning of Chapter 7, Title 54, §§ 54-113 to 54-145, inclusive, Code of Virginia, 1950. It being admitted that they had not registered and qualified as a general contractor or subcontractor under § 54-113(2), and that the cost of the work to be performed by plaintiffs was in excess of $20,000, the court dismissed the action. Upon petition of the plaintiffs, we granted a writ of error.

The issue for determination is: What effect, if any, did the failure of plaintiffs, trading as Sellers Brothers, to register and qualify as a subcontractor under Chapter 7, Title 54, Code of 1950 have on their right to maintain this action? In their brief plaintiffs concede that an amendment made to § 54-113(2) in 1954, Acts 1954,- ch. 428, p. 523¹, is not applicable here.

So much of Chapter 7, Title 54, Code, 1950, as is material and pertinent reads as follows:

§54-113(2) General contractor’ or ‘subcontractor’ shall mean any person, firm, association or corporation that for a fixed price, commission, fee or percentage, undertakes to bid upon, or to construct or superintend the construction of, any building, highway, bridge, railway, sewer, pipe line, grading, or any improvement, or structure or part thereof, when the cost of the undertaking or a subcontract thereunder is twenty thousand dollars or more; and any person, firm, association or corporation who shall bid upon or engage in constructing or superintending the construction of any structure or any undertaking or improvements or part thereof above mentioned in the State, costing twenty thousand dollars or more, shall be deemed to have engaged in the business of general contracting or subcontracting in this State.”

§ 54-128: “It shall be unlawful for any person to engage in, or offer to engage in, general contracting or subcontracting in this State, unless he has been duly licensed and issued a certificate of registration under the provisions of this chapter.”

§ 54-129 provides for application for registration, fees, examination and issuance of certificates.

§ 54-142 makes a violation of the statute punishable as a misdemeanor.

If the contract undertaken by Sellers Brothers brought them within the purview of §54-113(2), then upon engaging in the work as subcontractors without having obtained the required license and certificate of registration, they committed a misdemeanor, (§§ 54-128 and 54-142), and their contract is unenforceable. Bowen Electric Co. v. Foley, 194 Va. 92, 72 S. E. 2d 388; Hancock Co., Inc. v. Stephens, 177 Va. 349, 14 S. E. 2d 332; Massie, et al. v. Dudley, Exec’r, 173 Va. 42, 3 S. E. 2d 176; Colbert, etc. v. Ashland Construction Co., 176 Va. 500, 11 S. E. 2d 612; Lasting Products Co. v. Genovese, 197 Va. 1, 87 S. E. 2d 811; Sutton Co., Inc. v. Wise Contracting Co., Inc., et al., 197 Va. 705, 90 S. E. 2d 805.

Before undertaking to interpret §54-113(2) to determine if that section includes what plaintiffs contracted to do, we consider the character of the legislation embodied in Chapter 7, Title 54, Code of 1950, of which it is a part.

Chapter 7, Title 54, was enacted in the exercise of the state’s police power. Though it has remedial features, yet it imposes restrictions upon a common trade or occupation, and it is in derogation of the common law and must be strictly construed.

“In Virginia the well-settled rule of construction is that even though a statute be remedial, when, at the same time, it is also in derogation of common law, it must be strictly construed.” O’Connor v. Smith, 188 Va. 214, 222, 49 S. E. 2d 310. 17 M. J., Statutes, §§ 68, 69, p. 331.

The act in question is also penal, and for that reason, in applying its penal provision or giving effect to its sanctions, strict construction is required.

“This is a penal ordinance, and is, therefore, to be construed strictly. It is not to be extended by implication, and must be limited in its application to cases clearly described by the language employed. The books abound with cases illustrating this principle, which is of universal application, except in particular instances in which the doctrine has been modified by statute.” Gates & Son Co. v. City of Richmond, 103 Va. 702, 704, 49 S. E. 965. 17 M. J., Statutes, § 67, p. 329.

Unless the work that plaintiffs did falls within the letter and the spirit of § 54-113(2), they have committed no criminal offense, and their contract is enforceable. 17 M. J., Statutes, § 67, p. 329.

“There is nothing immoral or contrary to public policy in a construction contract involving $20,000 or more. Neither does the statute (Code, § 54-113 if.), either expressly or impliedly, forbid such a contract. It merely prohibits unqualified persons—that is those who have not registered or taken out the required license— from entering into such an agreement.” Cohen v. Mayflower Corp., 196 Va. 1153, 1160, 86 S. E. 2d 860.

Only general contractors and subcontractors as defined by § 54-113 (2) are required to take an examination and get a certificate. That section provides that the contractors to whom these statutes are applicable are those who bid upon, construct or superintend the construction of any (1) building, (2) highway, (3) bridge, (4) railway, (5) sewer, (6) pipe line, (7) grading, (8) or any improvement, (9) or structure or part thereof, “when the cost of the undertaking or a subcontract thereunder is twenty thousand dollars or more. # # #» jt tpen eXpressiy provides that any person who “shall bid upon or engage in constructing or superintending the construction of any structure or any undertaking or improvements or parts thereof above mentioned * * * shall be deemed to have engaged in the business of general contracting or subcontracting.”

It is conceded that neither a general contractor nor a subcontractor is required to take the examination and qualify unless the work that he personally bids upon or undertakes amounts to $20,000 or more. We likewise think fair interpretation and application of § 54-113(2) leads to the inevitable conclusion that it is the character of a subcontractor’s undertaking and not the character of the general contractor’s over-all undertaking that determines whether or not the subcontractor is within the terms of the statute. Consistency and reason negative the idea that the over-all character of the general contractor’s work should be determinative of the subcontractor’s status. The subcontractor might well agree with the general contractor to perform specified work and not be aware of what was the character of the general contractor’s over-all undertaking.

Certainly the work performed by plaintiffs did not come within the specific things which the statute enumerated in defining contractors. What they did must come under the head of “any improvement,” numbered (8) above if it be covered by the statute.

The words “improvement” or “any improvement” may have broad meaning when the user intends that they have a wide scope. Webster’s New International Dictionary, 2d ed,, defines the word “improvement” as “a valuable addition, or betterment, as a building, clearing, drain, fence, etc., on land.”

“The word ‘improvement’ is a comprehensive term, which includes in its meaning any development whereunder work is done and money expended with reference to the future benefit or enrichment of the premises.” Eppes v. Eppes, Exec'x, etc., 181 Va. 970, 988, 27 S. E. 2d 164.

However, the word “improvement” may also have a narrow meaning if that is intended. As said in 42 C. J. S., page 416, “The word ‘improvement’ is a relative and very comprehensive term, whose meaning must be ascertained from the context and the subject matter of the instrument in which it is used.” Building a house on a tract of land is malting an improvement, and is covered by the statute. Cutting weeds, hauling off rocks, spreading fertilizer, or planting an orchard would each be an improvement, but not the kind covered by the statute.

In § 54-113(2) the words “construct” and “construction,” modify and color the enumerated undertakings. They are the dominant and controlling words because all nine undertakings are susceptible of construction. All of the things listed except “any improvement” must be constructed, and their construction is contemplated in §54-113(2). None but an “improvement” can be accomplished without construction work. An improvement may or may not be susceptible of construction. Whether or not a contemplated improvement is one that will be constructed is wholly dependent upon what type of improvement is contemplated.

The words “any improvement” as they appear in §54-113(2) follow seven other specified undertakings that must be “constructed.” They also immediately precede the words “structure or part thereof.” This indicates that the words “any improvement” contemplate undertakings which are susceptible of construction as are the other listed things.

The two canons of construction noscitur a sociis and ejusdem generis indicate that the general words “any improvement” which follow several specifically enumerated things, all of which are modh fled by the words “construct” or “construction” were intended to include only undertakings that were to be accomplished through construction.

“The maxim Noscitur a sociis, is frequently discussed in connection with the maxim Ejusdem generis, and tinder these doctrines, where there are general words following particular and specific words, the general words must be confined to matters of the same kind as those specified.” 66 C. J. S., p. 608. 28 C. J. S., p. 1049; 50 Am. Jur., Statutes, §§ 248, 249, 250, pp. 243-246; Gates & Son Co. v. City of Richmond, supra; State v. Western Union Telegraph Co., 196 Ala. 570, 72 So. 99; Nettles v. Lichtman, 228 Ala. 52, 152 So. 450; Dunham v. State, 140 Fla. 754, 192 So. 324.

“Improvement” is not a word of art having a fixed and definite meaning. It takes color and significance from its surroundings and must be interpreted and given the meaning indicated by its setting. It will be judged by the company it keeps. 50 Am. Jur., Statutes, § 247, p. 241.

The work plaintiffs did, and what they ask to be paid for was clearing the reservoir area. That was the undertaking personal to them, and it was mere manual labor, the work of cutting and removing trees and brush, and nothing more. Not even the stumps of the trees had to be taken out. No grading was contracted to be done. No dirt was contracted to be moved. No construction of any character was involved.

Over the years much land has been cleared, and up to now it has not been considered necessary that one who does that sort of work should first take an examination and get a certificate. The language of a statute which requires one who merely clears “new grounds” to take an examination and get a certificate ought to be clear, certain and specific.

It seems obvious that the people this statute is intended to regulate are those who engage in construction work—those who undertake to construct the enumerated things, or construct things of like character. People who do that kind of work will be required to take an examination to ascertain their qualifications for the performance of their undertaking, i.e., whether they possess the proper skill and are reliable.

In the four cases Bowen Electric Co. v. Foley, supra, Rohanna v. Vazzana, 196 Va. 549, 84 S. E. 2d 440, Cohen v. Mayflower Corp., supra, Sutton Co., Inc. v. Wise Contracting Co., Inc., et al., supra, in which non-compliance by the contractor with Chapter 7, Title 54, Code of 1950, was sought to be invoked as a defense to plaintiff’s claim, no issue upon the kind of work done arose for in each instance the work undertaken was construction of one kind or another.

When a subcontractor’s agreement merely requires that he cut down trees and remove or burn the trunks, boughs and twigs, it cannot be fairly said that by doing so he has undertaken “to bid upon, or to construct, or superintendend the construction of * * * any improvement or structure or part thereof # * whatever may be the general contractor’s undertaking.

The facts are not in dispute and unless what Sellers Brothers contracted to do constitutes a crime under the statutes, their contract is valid. Certainly a fair and reasonable application of §54-113(2) to the facts of this case under the principles of construction and interpretation applicable to this statute would demand a finding that their undertaking was not within the letter or spirit of the penal provision of the statute.

For the reasons stated, the judgment of the trial court is reversed and the case remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

Spratley and Smith, JJ., dissenting.

1 “(2) ‘General contractor’ or ‘subcontractor’ shall mean any person, firm, association or corporation that for a fixed price, commission, fee or percentage, undertakes to bid upon, or accepts or offers to accept,* orders or contracts for performing or superintending-, (a) any work on or in any building or structure, requiring the use of paint, stone, brick, mortar, wood, cement, structural iron or steel, sheet iron, galvanized iron, metallic piping, tin, lead, or other metal or any other building material; (b) any paving, curbing or other work on sidewalks, streets, alleys, or highways, on public or private property, using asphalt, brick, stone, cement, concrete, wood or any composition; (c) the excavating of earth, rock, or other material for foundation or any other purpose; (d) the construction of any sewer of stone, brick, terra cotta or other material; (e) any work involving the erecting, installing, altering or repairing, electric wiring, devices or appliances permanently connected to such wiring; or the erecting, repairing or maintaining of lines for the transmission or distribution of electric light and power; (f) any work involving the installing, altering or repairing of any plumbing, steam -fitting or other piping, when the amount of the bid or cost of the undertaking, order, contract or* subcontract* is twenty thousand dollars or more; and any person, firm, association or corporation who shall bid upon, accept, offer to accept, or engage in* the doing or superintending of any work above mentioned in the State, costing twenty thousand dollars or more, shall be deemed to have engaged in the business of general contracting or subcontracting-in this State.”