State Bd. of Architecture v. Kirkham, Michael & Associates, Inc.

• Decision Date: 27 May 1970
• Docket Number: No. 8562,8562
• Citation: 179 N.W.2d 409
• Parties: STATE BOARD OF ARCHITECTURE of the State of North Dakota, Plaintiff and Appellant, v. KIRKHAM, MICHAEL & ASSOCIATES, INC., a Corporation, Defendant and Respondent. Civ.
• Court: North Dakota Supreme Court

Page 409

179 N.W.2d 409

STATE BOARD OF ARCHITECTURE of the State of North Dakota Plaintiff and Appellant, v. KIRKHAM, MICHAEL & ASSOCIATES, INC., a Corporation Defendant and Respondent.

Civ. No. 8562.

Supreme Court of North Dakota.

May 27, 1970.

Rehearing Denied Sept. 23, 1970.

Syllabus by the Court

1. The State, in the exercise of its police power, may regulate the profession of architecture.

2. In North Dakota, no person shall practice architecture as a profession unless he has obtained a certificate of registration from the State Board of Architecture.

3. To be registered as an architect, a person shall pass satisfactorily an examination in technical and professional courses as required by the Board (Sec. 43--03--14, N.D.C.C.); or he may be registered upon proof that he holds a certificate of registration from another State or country whose standards are not lower than those of this State (Sec. 43--03--15, N.D.C.C.). Thus a corporation may not be licensed under our law.

4. Where the defendant corporation holds itself out as providing architectural services in the State of North Dakota, which services a corporation may not legally perform in this State, it may be enjoined, under Section 51--12--14, from continuing to advertise such services.

Arnason & Pearson, Grand Forks, for plaintiff and appellant.

Conmy, Conmy & Feste, Fargo, for defendant and respondent.

STRUTZ, Judge.

The above-entitled action was commenced against the defendant corporation to enjoin it, under Section 51--12--14, North Dakota Century Code, from conducting allegedly false advertising of its architectural services in violation of Section 51--12--08. Another action, brought by one William E. Harrie, for himself and all others similarly situated, was commenced to enjoin the defendant corporation from practicing architecture in the State of North Dakota. The two actions were consolidated for purposes of trial.

The trial court denied an injunction in each of the actions and entered judgment for the defendant, dismissing the plaintiff's complaint in each case. The plaintiff in each case thereupon appealed to this court from the judgment so entered and from each and every issue of law and fact therein.

The record discloses that the defendant, Kirkham, Michael & Associates, Inc., is a North Dakota corporation. Three shares of defendant's stock are held by three individuals, none of whom are licensed North Dakota architects. The balance of its corporate stock is owned by Kirkham-Michael, Inc., a Nebraska corporation. Four per cent of the stock of the Nebraska corporation is held by three individuals who are architects, but only one of them is licensed to practice architecture in the State of North Dakota. The remaining ninety-six per cent of the stock of the Nebraska corporation, which owns all but three shares of stock in the defendant North Dakota corporation, is held by persons who are not architects. The holder of one share in the Nebraska corporation who is an architect licensed to practice in the State of North Dakota is Warren W. Keeler. He does not reside in this State, but is a resident of Nebraska. He also is the chief architect in similar operations in Nebraska and South Dakota. There are no persons licensed as architects in this State employed by the defendant corporation who reside in North Dakota. Fees paid to the defendant for architectural services do not determine the amount paid to Mr. Keeler since he is paid a fixed salary.

The record discloses that the work performed by the defendant corporation, which does a large business in this State, is about equally divided between its engineering and its architectural services. It further appears that work for its architectural services is solicited for the defendant corporation by employees who are not licensed architects. When a contract for architectural service is entered into, it is signed on behalf of the defendant by one of its corporate officers after approval by Keeler, the architect who is licensed in this State and who lives in Nebraska. Architectural business is solicited by the defendant corporation in the name of 'Kirkham, Michael & Associates, Engineers and Architects, Warren W. Keeler, Architect.'

It is well settled that the State, in the exercise of its police power, may regulate the profession of architecture. 6 C.J.S. Architects, §§ 2 and 5, p. 296, and cases cited. The State of North Dakota, in the exercise of this power, has enacted a law which provides:

'No person shall practice architecture as a profession in this state unless he had obtained from the board a certificate of registration and is registered as an architect.' Sec. 43--03--09, N.D.C.C.

The plaintiff asserts that the defendant corporation, which does not hold a certificate of registration as an architect and which may not legally be registered as an architect under the law, nevertheless is practicing this profession in violation of the statute. The plaintiff brings this action to enjoin such practice. The trial court dismissed the plaintiff's complaint on the ground that the plaintiff was not authorized to maintain the action under the law. The statute under which the action was commenced provides:

'Any person who violates or proposes to violate any of the provisions of sections 51--12--08 through 51--12--12 may be enjoined by any court of competent jurisdiction.

'Actions for injunction under this section may be prosecuted by the attorney general or any state's attorney in this state in the name of the people of the state of North Dakota upon their own complaint or upon the complaint of any board, officer, person, corporation or association or by any person acting for the interests of itself, its members or the general public.' Sec. 51--12--14, N.D.C.C.

Thus it will be noted that the action may be brought by the Attorney General or by any of the several State's attorneys, in the name of the people of the State and upon their own complaint, or upon the complaint of any board, officer, person, corporation, or association.

This action was not brought by the Attorney General or by one of the State's attorneys of North Dakota, and the trial court held that, since the action was not so brought, it could not be maintained. With this conclusion of the trial court we do not agree. It will be noted that the statute in question, after providing that an action for injunction may be brought by the Attorney General or by one of the State's attorneys, further provides that it may be brought 'by any person acting for the interests of itself, its member or the general public.'

Surely the Legislative Assembly intended this latter provision to have some meaning, even though the language of the statute is not clear or concise and certainly is not the best. The only meaning that this language can possibly be given is that, in addition to allowing such action to be brought by the Attorney General or by one of the State's attorneys, upon complaint of the parties mentioned, it might also be brought by any person acting for his own interests or by any board or association for its own interests or for the interests of its members or the interests of the general public.

This latter provision, as we interpret it, would permit an action to be brought by the State Board of Architecture for the interests of its members. The Board...