Ambro Advertising Agency v. Speed-Way Mfg. Co.

• Decision Date: 09 December 1930
• Docket Number: 40382
• Citation: 233 N.W. 499,211 Iowa 276
• Parties: AMBRO ADVERTISING AGENCY, Appellee, v. SPEED-WAY MANUFACTURING COMPANY et al., Appellants
• Court: Iowa Supreme Court

233 N.W. 499

211 Iowa 276

AMBRO ADVERTISING AGENCY, Appellee, v. SPEED-WAY MANUFACTURING COMPANY et al., Appellants

No. 40382

Supreme Court of Iowa, Des Moines

December 9, 1930

Appeal from Linn District Court.--A. B. CLARK, Judge.

Action at law, to recover for services rendered pursuant to a written contract entered into on April 11, 1929, by which the defendants contracted for certain advertising. The advertising thus contracted for was thereafter fully rendered by the plaintiff, and compensation therefor is claimed herein. In the second count of their answer, the defendants pleaded as a defense that the plaintiff was doing business under an assumed name, which did not disclose the true name or names of the partners, and that it had never complied with the requirements of Section 9866-a1 of the 1927 Code; that the contract sued on was, therefore, void, as being in violation of said statutory provision. To this count the plaintiff demurred, and the demurrer was sustained. The defendants elected to stand upon their pleading, and suffered judgment, from which they have appealed.

Affirmed.

Hann & Randall, for appellants.

Otto L Schluter, for appellee.

EVANS J. MORLING, C. J., and FAVILLE, KINDIG, and GRIMM, JJ concur.

OPINION

EVANS, J.

The contract sued upon was admittedly fully performed by the plaintiff, and the amount sued for is justly due the plaintiff from the defendants unless the contract itself is void, as in violation of the statute above referred to. We have no occasion, therefore, to consider any question but that of the validity of the contract itself.

The plaintiff was a partnership, comprising Otto Ambroz and Harold Rowe, as partners, and was engaged in business under the firm name indicated in the title hereto. The written order signed by the defendants was addressed to the partnership under such name. The statute relied on by the defense was enacted in 1925. It is as follows:

"9866-a1. Use of trade name--verified statement required. It shall be unlawful for any person or copartnership to engage in or conduct a business under any trade name, or any assumed name of any character other than the true surname of each person or persons owning or having any interest in such business, unless such person or persons shall first file with the county recorder of the county in which the business is to be conducted a verified statement showing the name, post-office address, and residence address of each person owning or having any interest in the business, and the address where the business is to be conducted. * * *

"9866-a3. Penalty. Any person violating the provisions of this chapter shall, upon conviction, be punishable by a fine of not less than twenty-five dollars nor more than one hundred dollars, or by imprisonment in the county jail for a term not exceeding thirty days."

The question presented is whether the foregoing statute operates to render wholly void the contract sued on. The contention of the appellants is that, inasmuch as the contract was entered into in violation of the prohibitions of the statute, it was necessarily void, even though the statute does not in terms declare such contract void. The contention for the appellee is that the contract itself was legitimate in every sense; that the statute should be construed, not as prohibiting the contract, or any other legitimate business done by plaintiff as a going concern, but rather, as the imposition of a duty upon the plaintiffs to file the information required by the statute, and as penalizing the failure to perform such duty.

The appellants rely for authority upon the analogy of our holdings in cases involving other subjects than that involved herein,--such as "Sunday contracts," and violations of prohibitory statutes relating to the practice of medicine and to the operation of machinery without safety appliances. In Pike v. King, 16 Iowa 49, we held that a contract made on Sunday, being prohibited by the statute, was, therefore, void and unenforceable. In Lynch v. Kathmann, 180 Iowa 607, 163 N.W. 408, we held that the plaintiff, who had failed to file his certificate authorizing him to practice medicine in this state, was not entitled to practice as a physician, and that he could not, therefore, recover for purported medical services. To the same effect, we held, in Rader v. Elliott, 181 Iowa 156, 163 N.W. 406, that a veterinarian was not entitled to practice as such until he had complied with the statutory conditions, and that he was not entitled to recover for services rendered as a purported veterinarian. In Dillon & Palmer v. Allen, 46 Iowa 299, we held that the owner of a threshing machine violated the statute when he operated his machine without boxing the joints, and that he could not recover compensation for the service rendered by him in such violation. The foregoing comprise the principal reliance of appellants, so far as our own cases are concerned. It will be noted that the prohibited act in each of the foregoing cases was clearly within the field of police power. The prohibition of "Sunday contracts" was deemed to be in the interest of public morals. The prohibition against operating dangerous machinery without boxing the joints was in the interest of public safety. The prohibition against the unauthorized practice of medicine was in the interest of the public health; and likewise, the veterinary practice. This fact is one to be borne in mind in putting a construction upon the statute now under consideration. To apply the prohibition of the present statute to all the business done in this state by firms operating under trade names, is to go far beyond the scope of police power. As to business carried on under trade names, the statutory construction to be adopted must be applicable alike to all. It purports no discrimination. The legislative power to prohibit an occupation does not extend to all business carried on under trade names. To construe this statute, therefore, as such prohibition, would be to nullify it as unconstitutional. If it cannot be deemed a prohibition applied to all such business, neither can it be deemed a prohibition of any.

However, the legislative power to regulate a business may be sustained, notwithstanding absence of power to prohibit it. To give this statute any vitality, we must construe it, therefore, as regulatory only, and not prohibitive. As a regulatory measure, it imposes the duty upon a partnership to file certain information as stated therein. It imposes a statutory penalty for failure to comply with such requirement. Statutes of this character have often taken the form which appears in the present statute, whereby they appear to assume a legislative power of prohibition which is not possessed. We have always construed such statutes by giving effect to the legislative intent within the scope of the legislative power. A sufficient illustration of this rule of construction can be found in State v. Gish, 168 Iowa 70, 150 N.W. 37, wherein we construed the statute pertaining to automobile license.

The statute under consideration here is similar to those obtaining in many other states, and the question here presented is one which has been considered in many of the courts of such states, and this with some resulting diversity of opinion. We have...