F. S. Bowen Elec. Co. v. Foley

• Decision Date: 10 September 1952
• Docket Number: No. 3954,3954
• Citation: 194 Va. 92,72 S.E.2d 388
• Court: Virginia Supreme Court
• Parties: F. S. BOWEN ELECTRIC COMPANY, INC. v. PAUL J. FOLEY AND OTHERS. Record

Page 388

72 S.E.2d 388

194 Va. 92

F. S. BOWEN ELECTRIC COMPANY, INC. v. PAUL J. FOLEY AND OTHERS.

Record No. 3954.

Supreme Court of Appeals of Virginia

September 10, 1952.

J. Foster Hagan and Maxwell A. Ostrow, for the appellant.

Lawrence W. Douglas, James H. Simmonds and Oren R. Lewis, for the appellees.

JUDGE: SMITH

SMITH, J., delivered the opinion of the court.

The question raised for decision by this case is whether a contractor who is not licensed and registered as a contractor under Chapter 7, Title 54, Code of Virginia of 1950 (§§ 54-113 to 54-145 inclusive) may recover the balance claimed to be due for work performed the total cost of which was more than $20,000.

The Code sections above cited were originally enacted by the Acts of 1938, chap. 431, and described as 'An ACT to regulate the practice of general contracting in Virginia; to establish a State Registration Board for Contractors and to define its powers and duties; to provide the method of obtaining a certificate of registration to engage in the practice of general contracting, and to fix fees for such certificates to dispose of the monies raised; to provide the method of suspension and cancellation of such certificate of registration; and to prescribe the punishment for violation of the provisions of this act. ' More specifically, section 54-113(2) ¹ defines general contractor or subcontractor and section 54-128 provides that, '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. ' Any violation of the statute is punishable as a misdemeanor.

This suit was instituted on March 16, 1948, by the appellant F. S. Bowen Electric Company, Incorporated, a District of Columbia corporation engaged in the business of furnishing and installing electrical equipment, for the purpose of enforcing several mechanics' liens which had been filed against a leasehold interest in certain real estate on which the Foley Corporation had erected an outdoor motion picture theater. The owners of the real property and the lien holders were made parties to the suit, but the appellee Foley Corporation, a Virginia corporation, is the real party defendant in interest. Various pleadings have been filed by both sides including an answer and cross bill by the Foley Corporation, but we are herein concerned solely with the propriety of the trial court's action in sustaining a demurrer to the appellant's amended bill and dismissing the same.

The original bill of complaint stated that '* * * your complainant * * * entered into a contract for the furnishing and installation of certain electrical equipment for the said theater at and for a full contract price of $34,757.20; * * * and that there is a balance due and owing under said contract of $18,033.82. ' Foley Corporation filed a special plea to the bill alleging that the appellant was not entitled to maintain its suit, since it had not complied with the registration statute hereinbefore referred to. The plea was stricken. Thereafter, the appellant amended its bill of complaint and undertook to show that two separate contracts had been entered into on the same project: one in the sum of $19,689.35 for furnishing and installing certain electrical equipment on a time-and-material basis, and another in the sum of $15,067.85 for performing certain work in connection with the building of the theater apart from the aforementioned electrical work. Both of these alleged separate contracts amounted in the aggregate to $34,757.20.

No itemized statement of account was filed with the original bill, nor was such an account filed with the amended bill. Thereupon the appellee filed its demurrer to the amended bill as follows:

'1. The amended Bill of Complaint shows upon its face that the complainant seeks to enforce a mechanics [sic] lien for money alleged to be due it, when the cost of the undertaking by the complainant was more than Twenty Thousand Dollars ($20,000.00); and the said amended Bill further shows that, at the time the work was alleged to have been performed and the materials furnished upon said undertaking, the complainant was not registered as a contractor in accordance with the requirements of Section 4359(103) et seq., of the Code of Virginia, 1942, as amended. [§ 54-113 et seq., Code of 1950].

'2. The Complainant has not filed with his amended Bill of Complaint an itemized statement of his account as required by Section 6437 of the Code of Virginia, 1942, as amended.' (§ 43-22, Code of 1950).

Thereafter, the appellant tendered what purported to be an itemized statement of its account and was granted leave to file the same and have it made a part of the amended bill.

On February 12, 1951, the trial court sustained the demurrer to the amended bill with the itemized statement as a part thereof and dismissed the bill.

The appellant concedes that it had not been duly licensed and issued a certificate of registration by the State Registration Board for Contractors at the time it filed its amended bill and, therefore, the only questions for us to decide are: (1) Should the appellant have been licensed and registered, and if so, (2) what effect does its failure to be licensed and registered have upon its right to recover in this suit?

The appellant contends that it was not required to register under Code section 54-113 et seq., because: (1) the statute is unconstitutional; (2) it has been licensed as an electrical contractor under Code section 58-297 and, therefore, is not required to be licensed under any other section of the Code; (3) it is not a general contractor or subcontractor as these terms are defined in Code section 54-113(2), because it is a contractor under Code section 58-297 et seq.; and (4) it did not contract for work which cost $20,000 or more.

We hold that Chapter 7, Title 54, Code of Virginia, 1950, is constitutional. The statute is designed to protect the public from inexperienced, unscrupulous, irresponsible, or incompetent contractors and to effectuate this purpose it requires a demonstration of ability, character, and financial responsibility as well as a good record of past performance. The necessity of regulating such businesses is now widely recognized and such regulations are a valid exercise of the police power of the State. Northen v. Elledge, 72 Ariz. 166, 232 P. (2d) 111; Franklin v. Goldstone Agency, 33 Cal. (2d) 628, 204 P. (2d) 37; State v. St. Petersburg, 133 Fla. 766, 183 So. 304, 118 A.L.R. 667; Kaiser v. Thomson, 55 N.M. 270, 232 P. (2d) 142; Ross-Frankel, Inc. v. State, 179 Tenn. (15 Beeler) 320, 165 S.W. (2d) 590. Comparable legislation in this State (Chapter 18, Title 54, Code of 1950, dealing with real estate brokers and Chapter 27, § 81, Code of the city of Richmond, 1937, as amended, dealing with the examination and licensing of plumbers) has been upheld as constitutional. Rountree Corp. v. Richmond, 188 Va. 701, 51 S.E. (2d) 256; Massie v. Dudley, 173 Va. 42, 3 S.E. (2d) 176.

The appellant next contends that since it has been licensed as an electrical contractor under Code section 58-297, it is not required to be licensed under any other section of the Code.

It will be observed that Title 54 of the Code is devoted to the regulation of various professions and occupations including, among others, architects, attorneys at law, contractors, embalmers, plumbing, real estate brokers, and pawnbrokers. The obvious common basis of all of these statutes which were grouped by the revisors under Title 54 is that all of the included professions and occupations are related to the health, safety, morals, or welfare of the public. The legislature has considered that the public interest is such that it demands their regulation.

On the other hand, Title 58 of the Code, classified as Taxation, contains various statutes the common purpose of which is the collection of revenue. Thus, all of the following professions and occupations are taxed; contractors, etc., (§ 58-298), architects (§ 58-370), attorneys at law (§ 58-371), engineers (§ 58-376), pawnbrokers (§ 58-392), and real estate agents (§ 58-398).

It would be just as illogical for the appellant to argue that any person holding himself out as a lawyer, who had paid the State revenue license imposed by Code section 58-371, would thereby be excused from submitting himself to the bar examination or otherwise establishing his professional qualifications as required by Code section 54-42 et seq.

The appellant attaches special significance to the words found in Code section 58-299 to the effect that if it had obtained the required State revenue license '* * * no further license shall be required by the State or other city or town for conducting any such business [contractor, electrical contractor, plumber, and steam fitter] within the confines of this State, except that qualification under § 32-61 may be required of contractors doing plumbing. ' Clearly, this only means that if an electrical (or other) contractor has paid the State license tax to the treasurer of the city or county where his principal office is located, he cannot again be required to pay the same tax in another city or county. Perhaps it is an oversight that Code section 58-299 does not refer to the exception that contractors when liable must register under Code section 54-113 et seq., but this does not excuse the appellant's failure to register. The two statutes are not mutually exclusive. The case of Welles v. Revercomb, 189 Va. 777, 54 S.E. (2d) 878, presented the question whether failure of a building contractor to pay the license tax required by the tax Code of Virginia barred his right to recover the balance due on a construction contract. Mr. Chief Justice Hudgins wrote the opinion for the court which held that the right to recover was not barred and pointed out the...