Marble v. Clein
| Decision Date | 24 December 1959 |
| Docket Number | No. 35063,35063 |
| Citation | 347 P.2d 830,55 Wn.2d 315 |
| Parties | , Blue Sky L. Rep. P 70,456 George MARBLE, Appellant, v. Norman W. CLEIN and Jane Doe Clein, his wife, Respondents. |
| Court | Washington Supreme Court |
Olwell & Boyle, Clinton H. Hattrup, Seattle, for appellant.
Wright, Innis, Simon & Todd, Roger L. Williams, Seattle, for respondents.
Plaintiff Marble appeals from a final judgment of dismissal after a demurrer to his complaint had been sustained.
The complaint alleged that respondents requested appellant to secure a buyer for them for their shares of corporate stock. Respondents agreed to pay appellant a commission if he secured a purchaser. Appellant did secure such a purchaser to whom the sale was made but respondents refused to pay, whereupon appellant sued to recover his compensation. Respondents' demurrer to the complaint was sustained. Appellant did not amend, and now appeals from a judgment of dismissal.
The sole issue is scope of the securities act (RCW 21.04). If the statute applies, appellant cannot prevail because he violated the statute, and a contract to do an illegal act cannot be enforced. On the other hand, if the act does not apply, no obstacle to appellant's recovery exists.
Appellant contends that he was not regularly engaged in the business of dealing in securities, and that this was a single, isolated act unconnected with his regular occupation. He further claims that the complaint does not allege any facts from which an inference can be drawn that such dealings were a regular practice with him.
The pertinent sections of the act are:
'The word 'broker' includes every person or company, other than an agent, engaging in the business of selling, offering for sale, negotiating for the sale of, soliciting subscriptions for, or otherwise dealing in securities issued by others; or underwriting any issue of securities, or of purchasing such securities with the purpose of reselling or offering them for sale to the public for a commission or at a profit * * *.' RCW 21.04.010(5).
'No person or company shall act as an agent or broker until such person or company shall have applied for and obtained from the director of licenses a certificate authorizing such company so to act. * * *' RCW 21.04.090.
'Every person who shall violate, or knowingly aid or abet the violation, of any provisions of this chapter, and every person who fails to perform any act which it is made his duty to perform herein, shall be guilty of a gross misdemeanor.' RCW 21.04.220.
Certain acts are prohibited, the violation of which is designated a gross misdemeanor, and the statute, clearly penal in nature, must be strictly construed. Johnson v. Rutherford, 32 Wash.2d 194, 200 P.2d 977; Salisbury v. Alskog, 144 Wash. 88, 256 P. 1030; Mangaoang v. Boyd, 9 Cir., 205 F.2d 553, certiorari denied 346 U.S. 876, 74 S.Ct. 129, 98 L.Ed. 384.
This court, in holding that a statute entitled "An act punishing bank officers for receiving deposits knowing the bank to be insolvent" Laws 1893, p. 271, did not apply to private bankers, stated:
'* * * It is a familiar rule of statutory construction * * * that a criminal statute will not be extended beyond its plain terms by construction or implication. * * *' State v. Youngbluth, 60 Wash. 383, 111 P. 240, 241.
Such is the controlling rule here.
A further guide for the construction of this statute is its relation to previous existing law. In the case of In re Tyler's Estate, 140 Wash. 679, 250 P. 456, 460, 51 A.L.R. 1088, this court quoted with approval the following statement:
This statute is in derogation of the common law, which permitted brokers and dealers to practice their profession and collect for services rendered without exacting a license. Accord: State v. Silberberg, Ohio Com.Pl., 128 N.E.2d 675, reversed on other grounds Ohio App., 130 N.E.2d 244, affirmed 166 Ohio St. 101, 139 N.E.2d 342.
This statute must, for such reason also, be strictly construed and limited to its plain intent and scope. Post v. Fischer, 191 Wash. 577, 71 P.2d 659; Grammer v. Skagit Valley Lbr. Co., 162 Wash. 677, 299 P. 376; Kuehn v. Faulkner, 136 Wash. 676, 241 P. 290, 45 A.L.R. 571.
However, meaning must be given to all words and the clearly expressed intent, although the statute cannot be extended beyond its plain terms.
The act prohibits a person from acting as a 'broker' without having first obtained a license, and provides a penalty for violation. 'Broker' is defined as including every person or corporation, other than agent, 'engaging in the business' of dealing in securities. Appellant was not engaged in the business of dealing in securities, but, on the contrary, the complaint alleges appellant was involved in but an isolated transaction. In the absence of any language bringing a single transaction within the statutory prohibition, the act cannot be so extended. To do so would be to imply a legislative intention where none is expressed, to deny settled rules of construction, and to disregard the decisional law. The we will not do.
This court, in defining the scope of the auto transportation act (RCW 81.68), held in Strickler v. Schaaf, 199 Wash. 372, 91 P.2d 1007, 1009, 123 A.L.R. 226:
'It will be observed that, under the section of the statute where auto transportation company is defined, the operators coming under the act must be engaged 'in the business of transporting persons, and, or, property for compensation.' The statute providing that no auto transportation company shall carry persons for hire between fixed termini and over a regular route without obtaining a license applies to common carriers. Isolated or occasional transportation of persons does not constitute 'engaging in business. * * *"
In Independent Truck Co. v. Wright, 151 Wash. 372, 275 P. 726, 728, the court held too broad an injunction issued under the same act where it enjoined the appellant from...
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State v. Coria
...... that a criminal statute will not be extended beyond its plain terms by construction or implication.'" Marble v. Clein, 55 Wash.2d 315, 317, 347 P.2d 830 (1959) (quoting State v. Youngbluth, 60 Wash. 383, 384, 111 P. 240 (1910)). Courts strictly construe statutes by choosing a narrow con......
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...law should be strictly construed. See also McDermott v. Kaczmarek, 2 Wash.App. 643, 648, 469 P.2d 191 (1970); Marble v. Clein, 55 Wash.2d 315, 317-18, 347 P.2d 830 (1959). Thus, in view of the lack of statutory language derogating the right of indemnity in a third party where the cause of a......
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...being in derogation of the common law, must be strictly construed." Zornes, 78 Wash.2d at 13, 475 P.2d 109 (citing Marble v. Clein, 55 Wash.2d 315, 347 P.2d 830 (1959) ). "Since the statute does not require that an intent to affect pending litigation be stated in express terms, but merely p......
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Table of Cases
...457 P.2d 590 (1969): 5.15 Manufactured Hous. Cmtys. of Wash. v. State, 142 Wn.2d 347, 13 P.3d 183 (2000): 1.5, 1.7(2) Marble v. Clein, 55 Wn.2d 315, 347 P.2d 830 (1959): 18.2(2)(d) Marsh v. Commw. Land Title Ins. Co., 57 Wn. App. 610, 789 P.2d 792, review denied, 115 Wn.2d 1025 (1990): 19.3......
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§ 18.2 - Licensing and Regulation of Brokers and Salespersons
...is no exemption for the handling of isolated transactions, not even for the sale of the capital stock of a corporation. Marble v. Clein, 55 Wn.2d 315, 347 P.2d 830 (1959); Grammer v. Skagit Valley Lumber Co., 162 Wash. 677, 299 P. 376 (e) Exemptions The only exemptions from the state licens......