Knight Drug Co v. Naismith

• Decision Date: 03 May 1946
• Docket Number: Nos. 31187, 31188.,s. 31187, 31188.
• Citation: 38 S.E.2d 87
• Parties: KNIGHT DRUG CO. v. NAISMITH. KNIGHT'S PHARMACY CO. v. SAME.
• Court: Georgia Court of Appeals

38 S.E.2d 87

KNIGHT DRUG CO.

v.NAISMITH.

KNIGHT'S PHARMACY CO.

v.SAME.

Nos. 31187, 31188.

Court of Appeals of Georgia,

Division No. 2.

May 3, 1946.

Syllabus by the Court.

Whether one who is engaged in the practice of a profession before doing which he is required to obtain a license and pay a license fee is precluded from recovering in an action for such services by a failure to obtain the license or pay the fee is a matter of defense and compliance with the law is presumed until the contrary is alleged and proved.

Error from Municipal Court of Savannah; Columbus E. Alexander, Judge.

Action on account by J. A. Naismith against the Knight Drug Company and against the Knight's Pharmacy Company for work allegedly done and services allegedly rendered. To review judgments overruling demurrer to the petitions in either case, defendants bring error.

Affirmed.

J. A. Naismith brought an action on account to the Municipal Court of Savannah against the Knight Drug Company, alleging an indebtedness for work done and services rendered, and brought an identical action, save for a difference in the amount of the recovery sought, against the Knight's Pharmacy Company. A determination of the issues in one case will be controlling upon those of the other and the two cases are treated here together.

The petition alleged materially that the defendant corporation is indebted to the plaintiff in the sum of $150 for work done and services performed as shown by the following itemized statement of the account: "Balancing and correcting; posting and footing and making adjusted entries in books of Knight Drug Company (three months) last quarter 1944----$50.00; preparing and compiling 1944 State and Federal income tax returns and schedules for the Knight Drug Company, ----Compiling Federal corporation excess profits tax return for Knight Drug Company (including amended federal returns)--$100.00; Total 150.00."

The defendant filed its answer of general denial along with its general and special demurrers to the petition. The demurrers were overruled with the exception of that part of ground 5 of the demurrer which called for the time when the services were performed, which was sustained and the plaintiff allowed ten days within which to amend. The defendant excepted to this ruling.

Marvin O'Neal, Sr., of Savannah, for plaintiffs in error.

Robert E. Falligant, of Savannah, for defendant in error.

FELTON, Judge (after stating the foregoing facts).

The defendant demurred to the petition on the ground that it does not allege that the plaintiff had, prior to the services he alleged he performed, obtained a license for the year 1945 from the Georgia Board of Accountancy nor that he had obtained from the proper authority in Chatham County and the City of Savannah, a license or paid the tax required as a condition precedent to a recovery in this action. Ga.Code Ann. § 84-215, Acts 1943, p. 363, 366, provides: "Within six months after this Act takes effect [approved March 19, 1943], any person or authorized representative of a corporation or firm, who shall be engaged in the practice of public accounting and who maintains an office for such purpose in the State of Georgia on the date of enactment of this Act, shall apply for registration with the State Board of Accountancy, and upon production of satisfactory evidence that such person, or authorized representative of a corporation or firm was so engaged on said date, the Board shall register such applicant. * * * No person, firm copartnership, association or corporation after the date of enactment of this law * * * shall engage in or use the style or title of public accountant unless the State Board of Accountancy has approved the qualifications of the registrant. Each such registered public accountant shall pay a registration fee of $5 and shall annually thereafter on or before July 1 of each year renew his registration by the payment of a fee of $5." Ga.Code Anno. § 84-9902, Acts 1943, 363, 368, further provides: "If any person shall hold himself out as having received a certificate pro-vided for in Chapter 84-2 on the subject of certified public accountants, or shall assume to practice thereunder as a certified public accountant, or use the initials 'C. P. A.' without having received such certificate or if the same shall have been revoked he shall be guilty of a misdemeanor, and shall be sentenced to pay not exceeding $500 or less than $200. If any person, firm, corporation or association shall hold himself out as having been registered as a public accountant as provided for in section 84-215, or assume to practice thereunder as a registered accountant without having been so registered by the Board of Accountancy of this State, or if said registration shall have been revoked, he shall be guilty of a misdemeanor and sentenced to pay not exceeding $500 or less than $200. Any person who shall violate any other provision of Chapter 84-2 shall be guilty of a misdemeanor, and shall on conviction be punished as provided by law." [Emphasis supplied] The first statute enacted with reference to public accountants is to be found in the Acts of 1908, p. 86, which as amended by the Acts of 1935, p. 95, concerned itself only with certified public accountants and while it did not make it unlawful for any person not recognized as a certified public accountant by the governing authorities to engage in public accounting, it did make it unlawful for one to hold himself out as having received the certificate from the State Board of Accountancy when in fact he was not entitled to do so, and in this regard, accountants under the law as it then stood came within the rule laid down in Brown v. Glass, 46 Ga.App. 323, 167 S.E. 722, construing a similar statute in regard to the architectural profession. From the language quoted above from the Acts of 1943, p. 363-369, we feel constrained to say, however, that the legislature in enacting this latter statute sought to control the profession of public accounting, and to prohibit all save those meeting the requirements of the statute from engaging therein, if they come within the definition of the statute. It is the general rule that the purpose and intent of the legislature in enacting a license statute; that is, as to the enactment of a revenue measure or a police regulation, is controlling in a determina tion of whether or not a failure to procure a license renders the contracts of the persons defined in the regulatory measure illegal and unenforceable where made in the pursuit of such occupation or profession requiring a license as a condition precedent to engaging in such occupation or profession. Where the purpose of the statute is to regulate and control the occupation or profession under the police power of the legislature "such purpose and intent may be manifested in various ways, such as requiring all persons seeking a license to practice such trade or profession to first stand an examination by some prescribed authority as to his skill and knowledge in and of matters pertaining thereto, or by requiring applicants seeking registration to first give bond and security for the benefit of any who might be injured by wrongful or unskillful practice, or by requiring proof of good character before being licensed and registered. Any or all of these or other precautions...