Sellers v. Bles

• Decision Date: 23 April 1956
• Docket Number: No. 4445,4445
• Citation: 198 Va. 49,92 S.E.2d 486
• Court: Virginia Supreme Court
• Parties: HUBERT SELLERS AND LOUIE SELLERS, TRADING AS SELLERS BROTHERS v. M. J. BLES, TRADING AS M. J. BLES CONSTRUCTION COMPANY. Record

Page 486

92 S.E.2d 486

198 Va. 49

HUBERT SELLERS AND LOUIE SELLERS, TRADING AS SELLERS BROTHERS v. M. J. BLES, TRADING AS M. J. BLES CONSTRUCTION COMPANY.

Record No. 4445.

Supreme Court of Appeals of Virginia

April 23, 1956.

T. Ryland Dodson and Stuart L. Craig (Fowler & Dodson on brief), for the plaintiffs in error.

Edwin B. Meade (Meade, Talbott & Tate and Wood & Bauknight on brief), for the defendant in error.

JUDGE: MILLER

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

Hubert Sellers and Louis Sellers, trading as Sellers Brothers, hereinafter referred to as plaintiffs, filed a motion for judgment against M. J. Bles, trading as M. J. Bles Construction Company, to recover damages in the amount of $27,774 for the alleged breach of a written contract.

Defendant filed a motion to dismiss upon the ground that the contract sued on was 'unlawful and void.' He asserted that it was unlawful and unenforceable because plaintiffs' undertaking was in excess of $20,000, and they had not registered with, and qualified before the State Registration Board for Contractors, as general contractors or subcontractors, as required by Code of Virginia, 1950, Chapter 7, Title 54, §§ 54-113 to 54-145, inclusive.

The case was heard by the court on the notice of motion supplemented by a bill of particulars, certain exhibits submitted by council, and the motion to dismiss.

It appeared from the pleadings and exhibits that defendant, as a general contractor, entered into a contract in July, 1953, with the City of Martinsville, Virginia, entitled a 'Contract for Projects Numbers 2, 4 and 5, and Specifications for Waterworks Improvements for City of Martinsville.' The contract provided that defendant was to clear a reservoir area, construct a dam and spillways, lay pipe lines, and do certain other things incidental to the completion of the whole waterworks improvement plan. Project No. 2 was entitled 'Pipe Line;' Project No. 4 'Clearing Reservoir Area;' and Project No. 5 'Earth Fill Dam.' The area to be cleared and the work to be done under Project No. 4 was set out as follows:

'Beginning at a line parallel to and 300 ft. upstream above the construction base line of the dam, the contractor shall remove from the entire area to be flooded and a marginal strip approximately 50 ft. beyond the flooded area all trees, saplings, undergrowth, brush wood, fallen trees, houses, fences, and other perishable material. He shall also burn over all of the area.'

It was also provided that 'the Contractor may determine for himself the method in which he shall destroy or remove the timber or material to be disposed of and shall have the privilege of clearing the land with bulldozers or similar equipment if found to be more economical than cutting with axes, saws or similar equipment.'

In clearing the reservoir area the contractor was allowed to use explosives for blasting, but in handling, using and storing explosives was required to conform to the laws and regulations of the City of Martinsville and the State, and to conduct blasting so as not to endanger persons or property. Strict requirements were prescribed as to adequate sanitary protection to insure cleanliness to the community and to prevent pollution of the water shed, in a manner satisfactory to the State Department of Health, the local Sanitary Officer and Engineer. The specifications only required that the trees be cut a short distance from the ground and the removal of stumps was not involved. No grading was required, no dirt was to be removed; and none of this was done.

Defendant, the general contractor, sublet Project No. 4 to plaintiffs as subcontractors, and the latter undertook the clearing of the reservoir area in accordance with the plans and specifications of that project. The area to be cleared consisted of 225 acres, and plaintiffs were to receive $143 per acre and the timber cut from that acreage.

A few weeks after plaintiffs began work, the Lester Lumber Company, Inc., made claim to the timber, and the parties interested being unable to agree on the ownership of the timber, defendant notified plaintiffs to stop all work and leave the area. Plaintiffs complied with that demand and then instituted their action on April 16, 1954.

The trial court, in a written opinion, held that plaintiffs were subcontractors within the meaning of Chapter 7, Title 54, §§ 54-113 to 54-145, inclusive, Code of Virginia, 1950. It being admitted that they had not registered and qualified as a general contractor or subcontractor under § 54-113(2), and that the cost of the work to be performed by plaintiffs was in excess of $20,000, the court dismissed the action. Upon petition of the plaintiffs, we granted a writ of error.

The issue for determination is: What effect, if any, did the failure of plaintiffs, trading as Sellers Brothers, to register and qualify as a subcontractor under Chapter 7, Title 54, Code of 1950 have on their right to maintain this action? In their brief plaintiffs concede that an amendment made to § 54-113(2) in 1954, Acts 1954, ch. 428, p. 523 ¹, is not applicable here.

So much of Chapter 7, Title 54, Code, 1950, as is material and pertinent reads as follows:

§ 54-113(2) "General contractor' or 'subcontractor' shall mean any person, firm, association or corporation that for a fixed price, commission, fee or percentage, undertakes to bid upon, or to construct or superintend the construction of, any building, highway, bridge, railway, sewer, pipe line, grading, or any improvement, or structure or part thereof, when the cost of the undertaking or a subcontract thereunder is twenty thousand dollars or more; and any person, firm, association or corporation who shall bid upon or engage in constructing or superintending the construction of any structure or any undertaking or improvements or part thereof above mentioned in the State, costing twenty thousand dollars or more, shall be deemed to have engaged in the business of general contracting or subcontracting in this State.'

§ 54-128: '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.'

§ 54-129 provides for application for registration, fees, examination and issuance of certificates.

§ 54-142 makes a violation of the statute punishable as a misdemeanor.

If the contract undertaken by Sellers Brothers brought them within the purview of § 54-113(2), then upon engaging in the work as subcontractors without having obtained the required license and certificate of registration, they committed a misdemeanor (§§ 54-128 and 54-142), and their contract is unenforceable. Bowen Electric Co. v. Foloy, 194 Va. 92, 72 S.E.2d 388; Hancock Co., Inc. v. Stephens, 177 Va. 349, 14 S.E.2d 332; Massie, et al. v. Dudley, Exec'r, 173 Va. 42, 3 S.E.2d 176; Colbert, etc. v. Ashland Construction Co., 176 Va. 500. 11 S.E.2d 612; Lasting Products Co. v. Genovese, 197 Va. 1, 87 S.E.2d 811; Sutton Co., Inc. v. Wise Contracting Co., Inc., et al., 197 Va. 705, 90 S.E.2d 805.

Before undertaking to interpret § 54-113(2) to determine if that section includes what plaintiffs contracted to do, we consider the character of the legislation embodied in Chapter 7, Title 54, Code of 1950, of which it is a part.

Chapter 7, Title 54, was enacted in the exercise of the state's police power. Though it has remedial features, yet it imposes restrictions upon a common trade or occupation, and it is in derogation of the common law and must be strictly construed.

'In Virginia the well-settled rule of construction is that even though a statute be remedial, when, at the same time, it is also in derogation of common law, it must be strictly construed.' O'Connor v. Smith, 188 Va. 214, 222, 49 S.E.2d 310. 17 M.J., Statutes, §§ 68, 69, p. 331.

The act in question is also penal, and for that reason, in applying its penal provision or giving effect to its sanctions, strict construction is required.

'This is a penal ordinance, and is, therefore, to be construed strictly. It is not to be extended by implication, and must be limited in its application to cases clearly described by the language employed. The books abound with cases illustrating this principle, which is of universal application, except in particular instances in which the doctrine has been modified by statute.' Gates & Son Co. v. City of Richmond, 103 Va. 702, 704, 49 S.E. 965. 17 M.J., Statutes, § 67, p. 329.

Unless the work that plaintiffs did falls within the letter and the spirit of § 54-113(2), they have committed no criminal offense, and their contract is enforceable. 17 M.J., Statutes, § 67, p. 329.

'There is nothing immoral or contrary to public policy in a construction contract involving $20,000 or more. Neither does the statute (Code, § 54-113 ff.), either expressly or impliedly, forbid such a contract. It merely prohibits unqualified persons -- that is those who have not registered or taken out the required license -- from entering into such an agreement.' Cohen v. Mayflower Corp., 196 Va. 1153, 1160, 86 S.E.2d 860.

Only general contractors and subcontractors as defined by § 54-113(2) are required to take an examination and get a certificate. That section provides that the contractors to whom these statutes are applicable are those who bid upon, construct or superintend the construction of any (1) building, (2) highway, (3) bridge, (4) railway, (5) sewer, (6) pipe line, (7) grading, (8) or any improvement, (9) or structure or part thereof, 'when the cost of the undertaking or a subcontract thereunder is twenty thousand dollars or more. * * *' It then expressly provides that any person who 'shall bid upon or engage in constructing or superintending the construction of any structure or any undertaking or improvements or parts thereof above mentioned * * * shall be deemed to have engaged in the business...