State ex rel. Attorney General v. Spann

• Decision Date: 17 December 1959
• Docket Number: 4 Div. 994
• Citation: 118 So.2d 740,270 Ala. 396
• Court: Alabama Supreme Court
• Parties: STATE of Alabama ex rel. ATTORNEY GENERAL v. Norman D. SPANN.

Page 740

118 So.2d 740

270 Ala. 396

STATE of Alabama ex rel. ATTORNEY GENERAL v. Norman D. SPANN.

4 Div. 994.

Supreme Court of Alabama.

Dec. 17, 1959.

Rehearing Denied March 24, 1960.

MacDonald Gallion, Atty. Gen., Jos. D. Phelps, Asst. Atty. Gen., J. Theodore Jackson, Dothan, and Wm. G. Caffey, Mobile, for appellant.

Lee & McInish, Dothan, for appellee.

STAKELY, Justice.

This appeal is from a judgment of the Circuit Court of Houston County, Alabama, sustaining the demurrer of Norman D. Spann (appellee), to a petition of the State of Alabama on the relation of its attorney general (appellant), alleging that said defendant for three years last passed 'has intruded and is intruding into the profession of architecture by engaging in the planning or designing for the erection, enlarging or alteration of a building or buildings for others, or by furnishing architectural supervision of the construction thereof (a profession requiring a license or certificate or other legal authorization within this state), without having obtained a certificate of registration from the State Board for the Registration of Architects of the State of Alabama, or the license required by law and is still unlawfully practicing said profession in Houston County, Alabama.'

The petition prayed for an order or rule to show cause 'by what warrant or authority the defendant is practicing said profession; and that he be excluded from said profession or be prohibited from practicing the same in the State of Alabama, until he shall have complied with the statutes in such cases applying.'

The demurrer of the defendant attacked the statute under which the writ was issued as unconstitutional on various grounds. The court sustained the demurrer on the theory that the statute, § 8 et seq., Title 46, Code of 1940, as amended by the Acts of the Legislature of Alabama of 1943, p. 191, and particularly Section 9 of the amended statute, contains arbitrary and unreasonable clauses and is too indefinite or uncertain to meet constitutional requirements. Having sustained the demurrer to the petition, the court then dismissed the petition for the writ of quo warranto. The appeal here is from that judgment.

I. General Acts, Regular Session 1931, p. 514 et seq. (Tit. 46, § 8, Code of 1940), provided for the registration or licensing of persons practicing architecture in the State of Alabama.

The lower court in entering its judgment sustaining the demurrer to the petition for writ of quo warranto expressly bases its decision on the claimed unconstitutionality of a portion of the amendatory act approved June 22, 1943. This act purported to amend §§ 8, 9, 13, 14, 15 and 19 of Title 46, Code of 1940. See § 8 et seq., Title 46, 1955 Cumulative Pocket Part, Code of 1940.

The claim of unconstitutionality is sought to be applied only to that portion of Chapter 2 of the 1943 Act, p. 191, which purports to amend § 9 of Title 46. The portion of the amended § 9 found objectionable is the provision that,

'No person shall be required to register as an architect in order to make plans and specifications for or supervise the erection, enlargement or alteration of any building upon any farm for the use of any farmer, irrespective of the cost of such building, or any one- or two-family residence building, costing less than $10,000.00, or any domestic outbuilding appurtenant to any such one- or two-family residence regardless of cost, or of any other type building costing less than $10,000.00 (except schools, auditoriums, or other buildings intended for the mass assemblage of people).'

There is considerable discussion in briefs as to whether the unconstitutionality of the portion of the amendatory act which we have quoted above affects the question of the constitutionality of the original act. It is argued that even though the amendatory act be unconstitutional, yet the original act which required a certificate of registration from the State Board for the Registration of Architects of the State of Alabama would not be affected. We see no point in considering the matter here referred to since upon due consideration, we do not think that the act, as amended, is unconstitutional.

It may be generally stated that in many states statutes are in force which regulate architects in the practice of their profession and these statutes require that those intending to engage in the profession secure from the proper board, commission or officer, a license or certificate to practice. The state in the exercise of the police power may thus regulate the practice of architecture. 3 Amer.Jur. § 3, p. 998.

It may be also noted here that there are several cases from other jurisdictions in which exemptions similar to the exemptions provided in the Act of 1931 are upheld as valid. Bollin v. Fahl, 232 Mich. 658, 206 N.W. 495; People ex rel. Laist v. Lower, 251 Ill. 527, 96 N.E. 346, 36 L.R.A., N.S., 1203; Ex parte McManus, 151 Cal. 331, 90 P. 702.

As we have heretofore indicated, the only provision of the amendatory act of 1943 which was held by the lower court to be arbitrary, unreasonable and too indefinite and uncertain to meet constitutional requirements, is the provision exempting those making plans and specifications for a one or two family residence costing not more than $10,000 from registering and obtaining a license as an architect.

It is our judgment that the legislature had the right and power to determine from the kind of building and its use, whether protection of the public requires that the plans and specifications therefor be prepared by a registered, licensed architect. A small building comparatively simple in design and structure and to be used by comparatively few people, for example a one or two family dwelling, might with reason be considered and in fact was considered by the legislature in a class which does not require the expert services of an architect. It seems to us that this is within the inherent power and authority of the legislature. The fact that a residence could be built for $10,000 or less would practically insure both smallness, simplicity and use by a few people and the combination would certainly form a basis upon which the legislature could classify these comparatively cheap and small family units as buildings which do not require that their plans and specifications be drawn by a registered and licensed architect. This is a matter which seems to us to be peculiarly within the province of the legislature and was considered and passed on by it when inserting the provision in the amendatory statute, which the lower court condemned.

From what we can ascertain there are statutes in other states containing provisions exempting from the operation of the statute buildings costing less than a specified amount. For example, the limit was placed by law at $10,000 for residences in the Arizona architect statute [A.R.S. § 32-101 et seq.]; at $5,000 in the New Mexico statute [1953 Comp. § 67-12-1 et seq.]; at $7,500, respectively, in the Illinois and Idaho statutes [Ill.Rev.St.1959, c. 10 1/2, § 1 et seq.; I.C. § 54-301 et seq.]. The North Carolina, Michigan and Nebraska statutes [G.S. § 83-1 et seq.; Comp.Laws 1948, § 338.551 et seq.; N.R.S. 623.010 et seq.] fix the limit at $20,000. Florida, Arkansas, Minnesota, New York, Oklahoma, Pennsylvania, Utah and Georgia fix the limit at $10,000 [F.S.A. § 467.01 et seq.; Ark.Stats. § 71-301 et seq.; M.S.A. § 326.02 et seq., Education Law, § 7301 et seq.; 59 O.S.1951 § 45.1 et seq.; 63 P.S. § 21 et seq.; R.C.M. 1947, § 58-3-1 et seq.; Code, § 84-301 et seq.]. In most of these statutes this...