McWhorter v. State Bd. of Registration for Professional Engineers and Land Surveyors ex rel. Baxley

• Decision Date: 10 March 1978
• Parties: Martin W. McWHORTER et al. v. STATE of Alabama BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS on the relation of William J. BAXLEY, as Attorney General of Alabama. SC 2785.
• Court: Alabama Supreme Court

Page 769

359 So.2d 769

Martin W. McWHORTER et al. v. STATE of Alabama BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS on the relation of William J. BAXLEY, as Attorney General of Alabama.

SC 2785.

Supreme Court of Alabama.

March 10, 1978.

Rehearing Denied June 9, 1978.

Hobart A. McWhorter, Jr., Birmingham, for appellant, Martin W. mCwhorter.

William J. Baxley, Atty. Gen. and Carol J. Smith, Asst. Atty. Gen., for appellee.

Randolph P. Reaves, Montgomery, for amicus curiae, State of Ala. Bd. of Examiners in Psychology.

Robert T. Meadows, III, Montgomery, for amicus curiae State of Ala. Bd. for Registration of Architects.

JONES, Justice.

This case concerns whether use of the term "engineering" in a business trade name, by a party who is not a registered engineer and who employs no registered engineers, is a per se violation of Tit. 46, § 128(1), et seq., Ala.Code (1973 Supp.) ¹, the statute which regulates the engineering profession in this State. The trial Court held that such inclusion was a per se violation and issued an injunction permanently enjoining its use. As modified by this opinion, the judgment below is affirmed.

Martin W. McWhorter, Appellant, is a machinery repairman doing business under the trade name "McWhorter Engineering Company." While operating under this name, he modifies air compressors which are used in filling air tanks used by scuba divers and fire departments. His checking account is listed under his business name; his checks bear this name; and he uses a stamp with this title. Furthermore, he advertizes in the telephone directory "yellow pages" (listed under "Diving" and "Divers' Equipment & Supplies" not under "Engineers") and in Skindiver Magazine using this same trade name. It is uncontested, however, that McWhorter is not now, nor has he ever been, a registered engineer. Moreover, it is stipulated that he has never contended that he was a registered engineer, and has never been engaged in the practice of engineering.

Appellee, the State of Alabama Board of Registration for Professional Engineers and Land Surveyors, first contacted McWhorter about use of the term "engineering" in his trade name in 1963 or 1964. From that time forward, they were in continuous contact. This suit to enjoin use of the allegedly illegal trade name was brought on July 12, 1974. Following trial, the Court entered an order finding McWhorter's use of the term "engineering" in his trade name to be a per se violation of Tit. 46, § 128(1), et seq., Code, and permanently enjoined his future use of the term.

The question presented for review queries whether use of the unmodified term "engineering" in a business trade name, by a non-registrant who does not practice the engineering profession, constitutes a per se violation of Tit. 46, § 128(1), et seq., Code. Because the question concerns a per se violation, a detailed analysis of the particular facts of this case would be irrelevant and, thus, will not be undertaken.

Initially, we must clarify the constitutional basis for regulatory statutes such as these presently under consideration. As is stated in § 128(1), the entire chapter was enacted to protect the public and "safeguard life, health and property." Therefore, these sections are constitutional on their face because they are legitimate exercises of the State's police powers. Southern Metal Treating Company, Inc. v. Goodner, 271 Ala. 510, 125 So.2d 268 (1960). See also Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975); State ex rel. Attorney General v. Spann, 270 Ala. 396, 118 So.2d 740 (1959); 53 C.J.S. Licenses §§ 4, 6; and 59 Va.L.Rev. 1097 (1973).

The principal question before us, then, concerns the interpretation and application of these statutes. As in all cases in which we are called upon to interpret a legislative enactment, the underlying consideration is to ascertain and effectuate the intent of the Legislature as expressed in the statute. Tillman v. Sibbles, 341 So.2d 686 (Ala.1977); and 73 Am.Jur.2d, Statutes, § 145. In arriving at a determination of legislative intent, the entire Act must be examined and construed as a whole, and, if possible, every word in it given effect. Tillman, supra. Furthermore, statutes which relate to closely allied subjects may be regarded as in pari materia. State of Alabama Board for Registration of Architects v. Jones, 289 Ala. 353, 267 So.2d 427 (1972); and 73 Am.Jur.2d, Statutes, §§ 158, 187-89. It is also proper to consider the particular evils at which the legislation is aimed, and the design, motive, purpose, and subsequent actions of the Legislature. See generally 73 Am.Jur.2d, Statutes, §§ 155, 157-58.

Upon examination of the sections presently before us, it becomes apparent the Legislature intended the Act to cover the instant situation. By enacting these statutes, the Legislature was seeking to protect the public from both active and unintentional misrepresentations which could cause harm to public health, safety and property. For this reason, if we determine that use of the word "engineering" in a business name by a non-registrant is misleading, the Legislature would have intended these sections to prohibit the use of such term.

Under § 128(1), before one's conduct becomes prohibited, he must either hold himself out or by some means tend to convey the impression that he is a professional engineer. McWhorter's primary contention is that the mere inclusion of the term "engineering" in a business name does not connote the professional status required to come under this chapter. The fallacy in this argument, however, becomes evident upon a closer examination of the applicable Code sections.

Title 46, § 128(1), Code (1973 Supp.), provides:

Practice of engineering and land surveying regulated. In order to safeguard life, health and property, no person in either public or private capacity shall practice or offer to practice engineering . . . , unless he shall first have submitted evidence that he is qualified so to practice and shall be registered by the board as hereinafter provided or unless he is specifically exempted from registration under the provisions of this chapter. It shall be unlawful for any person to practice or offer to practice in this state, engineering . . . , as defined by this chapter, or to use in connection with his name or otherwise assume, use, or advertise any title or description tending to convey the impression that he is a professional engineer . . . , unless such person has been duly registered or is exempt from registration under the provisions of this chapter. Provided, that any person whose firm name shall have contained the word "engineer," "engineers," or "engineering," or words of like import, for more than fifteen years before September 12, 1966 shall not be prohibited from continuing the use of such word or words in his firm name.

This section is followed by pertinent definitions contained in § 128(2):

Definitions. As used herein the following words and phrases shall have the following meaning unless the context otherwise requires:

(b) Engineer or professional engineer. The term 'engineer' or 'professional engineer' shall mean a person who, by reason of his special knowledge of the mathematical and physical sciences and the principles and methods of engineering analysis and design, acquired by professional education and/or practical experience, is qualified to practice engineering as hereinafter defined, and has been registered by the board as a professional engineer.

(g) Practice and offer to practice. A person shall be construed to practice or offer to practice engineering . . ., within the meaning and intent of this chapter, who offers to or does as a profession practice any branch of engineering . . .; or who by verbal claim, sign, advertisement, letterhead, card, or in any other way represents himself to be a professional engineer, or through the use of some other title implies that he is a professional engineer; or who represents himself as able to perform or who does perform any engineering service. ²

In trying to discern the legislative intent, several points render the conclusion inescapable that these sections, per se, condemn utilization of the term "engineering" in McWhorter's present trade name, even without the presence of the modifying term "professional."

1. The Act must be read and construed as a whole. Tillman, supra. In so doing, it will be noted that the terms "engineer" and "professional engineer" are used seemingly interchangeably. Also, the enforcement provisions ³ do not even mention the word "professional." If the term "professional" was a necessary appendage of the word "engineer," the ambit of these sections would be small indeed. Such restrictive application would prevent utilization of this Act under circumstances where it was clearly intended. The Legislature obviously did not intend its application to be so confined. Moreover, § 128(1) proscribes use of "any title or description tending to convey the impression that he is a professional engineer." (Emphasis added.)

2. Section 218(2)(b) defines "engineer" and "professional engineer" in the same terms. If different meanings had been intended, the Legislature would not have defined the two in identical phraseology. As commonly understood, the two certainly are not synonymous; as used in the statute, however, their meanings coalesce. It is well recognized that when the Legislature defines the language it uses, its definition is binding upon the courts, even though this definition does not coincide with the ordinary meaning of the words used. See generally Sutherland, Statutory Construction, §§ 20.08, 27.02. Therefore, the two words, as used in the statute, must be deemed synonymous.

3. The entire chapter, as originally enacted, utilized the term "professional engineer" almost exclusively. See Tit. 46, §§ 129, 130, Ala.Code (1940) (Recomp. 1958). These provisions were...